Ellerbe v. Marion County Lumber Co. ( 1914 )

The opinion of the Court was delivered by

Mr. Justice Gage.

Action for malicious trespass. The defendant entered under a timber deed and cut the plaintiff’s trees. The right to enter and cut is not in dispute, but is admitted. The wrong alleged lay in a negligent and wilful cutting, and in doing things not warranted by the deed. The defendant admits the commission of some wrong. So the only issue was how much damage was done.

The verdict was $5,000, one-half of the sum claimed.

There are four exceptions by the defendant.

One arises out of a construction of the deed; one arises out of the exclusion of testimony; two arise out of the admission of testimony.

1 The 129 pages of printed testimony has no relevancy to the issues made by the exceptions, except the small portion thereof, referred to and quoted in the exceptions. The whole testimony ought not to have been printed. Thereby a heavy and unnecessary burden has been put on the losing party.

We are of the opinion that none of the exceptions are sound, and that the judgment ought to be affirmed.

The complaint alleged in the seventh paragraph that the defendant “injured and destroyed by its operations large quantities of the young timber on said land, which was'not covered by its said deed, and the undergrowth, brush and shrubbery, thereon; that such injury and destruction were wholly unnecessary, and that it could have cut and removed with all reasonable convenience all the timber acquired by it under said deed without causing such injury or destruction.”

2 Had the defendant been ignorant of the instrumentality whereby the damage to the young timber was.done, or had it desired a more particular statement of such instrumentality, a motion to make the allegation more specific was available to it.

3 If a trespasser enters and cuts timber with an axe or a saw, the pleader need not allege the instrument; it is sufficient to allege the wrongful act of destruction. Under the common law system of pleading it was only necessary to charge that the defendant had entered by force and trampled upon the grass of the plaintiff, without any description of the instrumentalities that were used. The Code has not altered that rule.

No more is it necessary to allege that the injury was done by that modern moloch called a skidder.

4 The question which the defendant propounded to the witness, Haselden, and which the Court held to. be incompetent, was this: “Did they leave more timber on there oversize than they cut undersize?”

The contention of appellant is, that the plaintiffs had undertaken to prove that the land had been swept of all its tree growth, and that the question propounded to the witness was put to disprove’that contention.

It is true evidence would be competent which tended to show that all the timber growth had not been destroyed. And this witness, almost at the same moment, was allowed to answer this question: “Mr. Holt testified yesterday that everything of any value had been raked off of the land, small timber, large timber and all; is that true or not?” The witness answered: “It is not true.”

The defendant, therefore, got the benefit of the denial, in one form if not in another.

The’Court, besides, only ruled that it was not competent for a trespasser to prove, in mitigation of damages, that while he had cut trees he was not entitled to cut, he had left others which he was entitled to cut. Furthermore, by appellant’s argument, “under the terms of the deed and the facts that were developed, we had until 1918 to cut, and our rights had not determined at the time of the contract, or yet, for that matter

If that be true, and it is assumed to be true, the appellants may, “yet” go upon the land and cut the oversized timber.

. The leaving of it on the land was not for the plaintiff, but for the defendant themselves.

It was, therefore, incompetent and irrelevant to prove that there was on the land oversized timber which belonged to the defendant.

It is true that the third exception has some basis of technical merit in it.

5 The plaintiffs’ witness, Holt, was asked in reply how much area the skidder set-ups took up. The defendant objected to the testimony because not in reply. The plaintiffs contend in argument that the testimony was in reply to that of the witness, Haselden. That is true, but Haselden testified about that matter, not at' the instance of defendant’s counsel, but on cross-examination.

The Court did not rule on the objection.

In strictness the testimony was not in reply, but it was very meagre, not of great consequence, and the defendant did not ask leave to rebut it.

7 The reply, if the testimony is competent and relevant, is a matter left largely in the discretion of the trial Court; and where it develops a grave issue the Court always permits a rebuttal.

8 The last and fourth exception is directed at the Court’s instruction that the deed “did not give (defendant) any right to a tramway or spur track. It only gave them the right to operate a railroad across said land.”

The charge was made on plaintiff’s request. .

The, exception is so amplified that it appears threefold; but it is really single.

The pith and point of it is, that when the grantor conveyed the timber, he conveyed every reasonable method of getting the timber off the land; and whether the system of railroad tracks built by the grantee was a reasonable method, was an issue for a jury, and not for the Court.

The plaintiffs’ witnesses swore that there were two main lines of railroad and seven spurs, and that the aggregate length of the whole was nearly five miles.

So that the issue of law was, did the deed warrant the contention of fact that such was a reasonable method of getting the timber, or did the deed by words prohibit such method ?

If the grantor had simply conveyed the timber, and expressed naught else, then the grantee would have had the right to take the timber off the land by any reasonable method, of which a jury would be the judges.

If the deed had conveyed the timber, and expressed a prohibition of any railroad, then the Court would have had to instruct the jury that a railroad was not one of the methods to be used in getting the timber off.

The case at bar is betwixt those stated.

After the grant of the timber, this language is used in the deed: (1) The grantee “to have exclusive rights of way over said land; (2) to have ingress and egress at any and all times for men, teams, etc.; (3) and the right to build, construct and operate a railroad across said lands so long as they may desire free of any charge.”

The first and second rights, without any expression of them, are easements of necessity, and went along with the grant of the timber.

9 The third right would not have so gone; because the operation of a steam car on woodland is an uncommon burden on the servient estate, and ought to be the subject of special agreement.

Manifestly, the defendant had the expressed right to construct “a railroad;” and if the expression had been “only one railroad,” then the defendant would clearly have been limited to that as matter of law.

On the other hand, had the expression been a “system of railroads,” then, as matter of law, the defendant might have built more than one railroad.

10 Did the parties by contract in plain words so fix by law the method of operation; or did they leave it to be fixed by testimony about a reasonable method and verdict of a jury?

If the parties fixed the method by contract, to wit, a railroad, and meaning thereby one railroad, it matters not that the timber could have been moved with less hurt to the servient estate-by the construction of more than one railroad.

There is no force, therefore, in the defendant’s contention, supported by testimony, that the railroad system which is operated was best for the servient estate.

11 The further contention of the defendant is, that the plaintiff tendered to the jury the issue of a reasonable method of logging by a system of railroads; and that by the seventh paragraph of the complaint, already quoted.

But that paragraph has reference as much to the use of a skidder as to the construction of a railroad; and by a critical construction of the words of the paragraph it does not even refer to the damage which resulted from a construction of the railroad.

The sixth paragraph sets out the wrongful construction of the system of railroads, and charges exactly how the damage followed that áct.

The seventh paragraph charges that the defendant, also, did other wrongful things. That, however, is too technical.

So the question comes back to the plain meaning of the words of the deed “the right to build * * * and operate a railroad across said lands.” •

It was the business of the Court to tell the jury what these words meant, if they are free from ambiguity. Plainly, the Court would have been right- to instruct the jury that the defendant had the right to build a railroad, for the language of the deed so declares.

12 And if the words “a railroad” do not embrace two lines and seven spurs, it was the business of the Court to so instruct the jury. It would be the sanction of an unwarranted looseness of language to hold, that where the parties have agreed that “a railroad” might be built, a Court must stand aside the contract and submit to a jury to enquire if thereunder two railroad lines and seven spur tracks was a reasonable method of removing the logs.

The parties must stand to their plain agreement.

The judgment below is affirmed.

Footnote. — See note as to admissibility of evidence of benefit to owner in mitigation of damages for trespass. 20 A. & E. Ann. Cas. 925.