Sansing v. Thomas ( 1949 )

ON SUGGESTION OF ERROR. The Suggestion of Error, herein filed, is directed principally to that portion of our original opinion wherein we say, with reference to the instruction therein set out and held to be erroneous, "It took away from the jury the right to find, if the evidence justified the finding, that the fence line had been recognized and considered the line by the adjoining property owners for sufficient time and under such conditions as to become the established line between the adjoining owners." [38 So.2d 707]

The suit was for trespass and sought the recovery of the actual value and the statutory penalty for trees cut by appellant on the lands of appellee. For more convenient reference, we again set out the instruction which, in the original opinion herein, we held to be erroneous and requiring a reversal of the case. It is as follows:

"The Court instructs the Jury for the plaintiff, Maggie Thomas, that she is the owner under the facts in this case and the jury should so find, of all the land within the survey shown by the evidence in this case lying West of the Thompson Lands and lying West of the line running south from the road 35.55 chains between the Thompson land and the land of plaintiff, and that she is entitled under the facts and law in this case to recover the actual value of the timber and trees shown by the preponderance of the evidenve to have been cut from said lands of the plaintiff, and the court instructs the jury to return a verdict for such actual value as they may believe is shown by a preponderance of the evidence of all timber and trees cut and removed or destroyed from the lands of the plaintiff by the defendant, his agents and employees."

As we pointed out in our former opinion, Curtis Thomas, the husband of the appellee and her admitted agent, informed Sansing's manager and cutters that the line of his wife's property ran along and was in accordance with an old fence, or the evidence thereof, where the fence had been destroyed or removed, and that Thomas blazed some trees in spaces where the fence did not then exist, and that Thomas informed the cutters that they could cut to this old fence and blazed line. Many of the trees, complained of, were cut west of this fence line, but east of the boundary line as run by the surveyor, some seven months later, which trees were within the survey and shown by it to be on the lands of appellee, but outside of the boundary of the lands, if the old fence and blazed line were the true boundary. In the latter event, the trees would be on the lands of Thompson and not on the lands of appellee.

If the jury should find, and they had the right to so find from the evidence in this record, that Thomas did point out the old fence line, as claimed, and did authorize appellant and his agents to cut up to that line, then this would constitute a license to appellant and his agents to so cut up to said line, and would justify and excuse the appellant and exempt him from all liability for both actual damages and the statutory penalty for all acts done within the scope of the license, and for all trees cut before reaching the fence line, and this would be true even though the surveyed line were the true line and the trees cut between it and the old fence line were in truth and in fact on the lands of appellee.

(Hn 1) The rule is appropriately stated in 53 C.J.S., Licenses § 84b, p. 811, as follows:

"A license excuses the licensee from liability to the licensor for acts done within the scope of the license, at a proper time and in a proper manner; but it does not justify acts exceeding the authority granted. (Hn 2) Until revoked, a license constitutes protection to the licensee as against the licensor, even though the act licensed is illegal. It justifies or excuses him, and exempts him from liability to the licensor for all acts done within the scope of the license prior to its revocation, including all acts which are necessarily incidental to the full enjoyment of the license. . . ."

American Jurisprudence, Vol. 33, p. 413, Sec. 109, announces this same rule as follows:

"An act which would otherwise be a trespass on real property may be justified on the ground of a license to use or enter upon such property, if at the time of such act the license is still unrevoked. Trespass will not, for example, lie where one goes on the land of another to remove buildings he has erected there or other movable property under a parol license from the owner, unless he has lost the right of removal."

This has been the rule in this State for almost one hundred years. In New Orleans, Jackson Great Northern Ry. Company v. Moye, 39 Miss. 374, decided in 1860, one Alexander sued the New Orleans, Jackson and Great Northern Railroad Company for damages occasioned by a trespass upon his premises by construction of their railroad across the same. The deposition of Reuben Davis was offered in evidence by the railroad company. He testified he was the agent of the company in procuring the right of way, and that a conversation with Alexander in reference to the right of way over his lot in which Alexander said: "I will not claim damages, and you need not have a jury assembled to assess the damages, but can go on with the completion of the road." No consideration was offered or paid for the right of way over Alexander's land. There was an objection to the introduction of the deposition "because the agreement testified to was not in writing." The Court held it was not necessary that the agreement be in writing; that it was a license or permission; did not depend on any consideration to support it; and constituted a defense to an action of trespass for doing that which the plaintiff had licensed and permitted to be done; and that it was error for the lower court to have excluded it.

In Hicks v. Mississippi Lumber Company, 95 Miss. 353, 48 So. 624, this Court held that a verbal license to enter upon land and cut such timber as may be needed for clearing a right of way is a complete defense to an action for the statutory penalty for the cutting of the trees, and is also a complete defense to a suit for the value of the trees cut.

Getting back now to the instruction under consideration, it will be observed that it peremptorily told the jury that they should return a verdict for appellee for the actual value of the timber and trees cut from the lands of the plaintiff, east of the surveyed line, even though they might have been cut west of the line pointed out by Thomas. This is not the law. (Hn 3) Appellant's license, if such were found by the jury to exist, would be a defense to any action for trespass by the cutting of trees between the newly surveyed line and the fence, and if the jury believed from the evidence that Thomas had pointed out the line and said that appellant and his agents could cut up to it, as alleged and proven by witnesses for the defendant, then this would be a defense and there could be no recovery of either the actual value or the statutory penalty for the trees cut between the two said lines. (Hn 4) The instruction, in its present form, excludes from the jury the consideration of the license, if any, granted by Thomas to appellant and, without authority of law, deprives appellant of the consideration by the jury of this meritorious defense to all claims for either actual value or statutory penalty on account of trees that may have been cut between said lines. The Suggestion of Error will therefore be overruled.

Suggestion of error overruled.