Opinion
No. 28659.
May 5, 1930.
REPLEVIN. Plaintiff seeking to replevy logs cut from his land must prove right to possession; evidence on issue whether logs sought to be replevied were cut on plaintiff's land or on land previously expropriated held insufficient to take case to jury.
In a replevin suit for logs cut from the land of the plaintiff, the plaintiff must prove the right to possession of the logs, and where it appears that a portion of the land from which the logs were cut had been taken from the plaintiff prior to the cutting by expropriation proceedings, and the plaintiff's proof did not make certain whether the logs were cut on the part expropriated or on the remainder, or, if any, what portion was cut upon the land retained by the plaintiff, such proof is insufficient to support a judgment for the plaintiff, and it is not reversible error to grant a peremptory instruction for the defendant.
APPEAL from circuit court of Sharkey county. HON.E.L. BRIEN, Judge.
Hirsh, Dent Landau, of Vicksburg, for appellant.
The undisputed testimony showed that seventy-five logs were cut from appellant's land.
The appellant was entitled to recover as to the seventy-five logs, or, in any event, to have this phase of the controversy submitted to the jury.
W.H. Clements, of Rolling Fork, and Farish Bell, of Greenville, for appellee.
The testimony of the principle witness for appellant as a whole shows conclusively that he did not know whether the timber was cut from the land of appellant or from the land of the levee board.
The burden of proof was, on the appellant to show that the logs were cut from its land, and appellant failed to meet this burden.
The peremptory instruction was properly given.
The appellant, Anderson Tully Company, instituted suit in the circuit court of Sharkey county in replevin for the recovery of seventy-nine gum logs, forty-five oak logs, nine elm logs, and one cypress log, alleged to have been wrongfully detained by the appellees. The logs were seized by the sheriff, and the affidavit having averred that they had been wrongfully taken from the possession of the appellant within thirty days, and the appellant having given bond as required by the statute (Code 1906, section 4225, Code 1917, section 3054, Code 1927, section 3259), they were surrendered by the sheriff to the appellant.
The logs, except the cypress log, were valued by the sheriff at ten dollars each, the cypress log being valued at five dollars, thus making an aggregate valuation of one thousand three hundred thirty-five dollars.
The appellant filed its declaration charging that it was the owner of certain lands situated in Issaquena county, describing same, and that its logs were wrongfully moved therefrom. The logs being in Sharkey county at the time of the institution of the suit, such suit was instituted there.
The defendant (appellees here) pleaded not guilty. The evidence in the case showed that the logs were cut from the lands described in the declaration, and the plaintiff (appellant here) introduced deeds to establish its title to such lands.
It developed, however, that a part of these lands had been expropriated for levee purposes by the board of Mississippi levee commissioners, and that the levee board had filed a claim to the logs. The defendants introduced the proceedings of the levee board, and the plaintiff was unable to prove whether the logs were cut upon lands not included in the expropriation, or what part, if any, were cut from lands belonging to the levee board; and, at the conclusion of the evidence, the court granted a peremptory instruction for the defendants. The levee board being a claimant, the issue between it and the defendants was not settled by the court, and is not involved here; and the plaintiff, having failed to prove that any part of the logs were cut off of lands belonging to it and not taken over by the expropriation proceedings, fails to sustain its case, and the peremptory instruction was rightfully granted by the court, and the judgment of the court below will be affirmed.
Affirmed.