Opinion
No. 33059.
April 18, 1938. Suggestion of Error Overruled May 16, 1938.
1. LOGS AND LOGGING.
In suit to recover value of timber bought by defendant from trespasser who cut and hauled timber from plaintiffs' lands, plaintiffs had burden of proving with a reasonable degree of certainty that timber bought by defendant was taken from their lands, and that proof could be made directly by witnesses who hauled timber or saw it hauled, or circumstantially by showing that trespasser's only available supply of timber within a reasonable distance was plaintiffs' lands.
2. LOGS AND LOGGING.
In suit to recover value of timber bought by defendant from trespasser who cut and hauled timber from plaintiffs' lands, burden did not shift to defendant to show that timber bought by it came from other lands than those of plaintiffs, on showing that trespasser cut and hauled about 100,000 feet of hardwood timber from plaintiffs' lands during August and September, and that defendant bought more than 49,000 feet of hardwood timber from trespasser from August to December, but plaintiffs had burden throughout of showing that timber came from their lands.
3. LOGS AND LOGGING.
In suit to recover value of timber bought by defendant from trespasser who cut and hauled timber from plaintiffs' lands, showing that trespasser cut and hauled about 100,000 feet of hardwood timber from plaintiffs' lands during August and September, and that defendant bought more than 49,000 feet of hardwood timber from trespasser from August to December, was insufficient to support decree for plaintiffs where proof showed that about half of timber bought by defendant from trespasser was delivered in November and December, and there was no proof that there was a delay between cutting and hauling of timber taken from plaintiffs' lands.
APPEAL from the chancery court of Jefferson county; HON. R.W. CUTRER, Chancellor.
W.S. Henley, of Hazlehurst, for appellant.
The decree of the court below is against the overwhelming weight of the evidence.
The evidence is wholly insufficient to show that McLemore cut any timber from Krauss' lands.
The court erred in admitting the alleged admission of McLemore as against his co-defendant, The Southern Package Corporation.
Evidently the court based its decision that McLemore cut the hardwood timber upon the alleged admission of McLemore that he cut the hardwood timber, which was objected to by the Southern Package Corporation. A decree pro confesso had been entered against McLemore before this case came on for hearing. There was no issue at stake insofar as he was concerned. The purpose of this alleged admission was to establish the trespass in order to hold the defendants, the Southern Package Corporation and the Belgrade Lumber Company, liable. There was no issue before the court as to McLemore because this had been disposed of by the decree pro confesso. We respectfully insist that when there are two defendants and their interests are separate and distinct, that the admission of one cannot be used as evidence against the other.
22 C.J. 349; Prewett v. Coopwood, 30 Miss. 369.
The evidence is wholly insufficient to show a wilful trespass.
There is no evidence whatever identifying the logs sold to the Southern Package Corporation as having been cut from Krauss' lands. Even if it be assumed that the evidence was sufficient to show that Mr. McLemore cut certain hardwood timber from Mr. Krauss' lands, there is absolutely not one word of evidence in the record to show that the logs purchased by the Southern Package Corporation was the same timber cut from Krauss' lands.
The burden was upon the complainants to establish not only that a trespass was committed upon their property, but in order to recover from this defendant, they must establish that the identical property which the Southern Package Corporation purchased came from their property. In other words, the identity of the logs alleged to have been cut from the complainants' land and of the logs purchased by the defendant must be established by affirmative evidence.
Syck v. Bossingher, 94 N.W. 920; Spicer Land Co. v. Hiram, 244 N.W. 533; Barclay v. Smith, 36 So. 449; Jebeles Colias Confectionary Co. v. Hutchinson, 54 So. 618.
The appellant was a bona fide purchaser for value without notice.
Mayes v. Thompson, 91 So. 275; Guarantee Trust Safe Deposit Co. v. Drew Inv. Co., 31 So. 736. Luther A. Whittington, of Natchez, and Corban Corban, of Fayette, for appellees.
It was abundantly established by the employees of Mr. J.T. McLemore who testified in the trial of this case that Mr. McLemore did cut and remove said timber from complainants' lands. It was further conclusively established by the evidence in this case that McLemore cut the hardwood timber at about the time and during the time that he sold the 49.155 feet to appellant.
Undoubtedly it was competent to give in evidence the admission by J.T. McLemore made to the agent of the appellees that he did trespass upon appellees' lands and did cut and remove the hardwood timber therefrom. The decree pro confesso against J.T. McLemore was before the court without introduction and certainly was a part of the record that the court had a right to consider in reaching his judgment.
The evidence is conclusive that McLemore was cutting the hardwood timber on appellees' land at the time he delivered and sold the hardwood logs to appellant; in the absence of direct proof to the contrary, these facts were and are sufficient to support the finding of the Chancellor that the logs purchased by appellant came from the lands of appellees and were their property, and taken together were and are sufficient identification of appellees' property traced to appellant.
The Chancellor heard all the witnesses give their evidence, their action and conduct on the witness stand was noted by him and this court cannot from the record in this case say that there was not sufficient evidence upon which the judgment of the court was based to justify the decree entered by the Chancellor.
As to the contention that the appellant was a bona fide purchaser for value without notice the law is plain and unmistakable. It is a general rule as regards personal property that title, like a stream, cannot rise higher than its source.
24 R.C.L. 373.
A trespasser who cuts timber on the land of another can transfer, as a general rule, no better title to the timber so cut, even to a bona fide purchaser, than he himself had.
Bolles Wooden-Ware Co. v. United States, 106 U.S. 432; Zimmerman v. Elder, 29 So. 466; Unger v. Abbott, 46 So. 68; Kitchum v. Brennan, 53 Miss. 596.
Where timber is stolen and bought by a third person in good faith, the original owner is not deprived of his title.
Goodwin v. Tawnzer, 119 S.W. 1133.
Those who purchase timber that is being trucked to them from all parts of the state should be made to know that if they are purchasing timber that has been wrongfully and wilfully and knowingly taken from another that they are liable for the value of it, when and if they receive it, or at least for the value thereof paid by them for it.
Argued orally by W.S. Henley, for appellant, and by Luther A. Whittington, for appellee.
It is undisputed that about 100,000 feet of hardwood timber was cut and hauled from the lands of appellees and that the cutting was done during the months of August and September, 1935. It is sufficiently shown that this was done by one J.T. McLemore, and that he was without right or title. It is also shown, without dispute, that appellant bought from McLemore 49,155 feet of hardwood timber during the period from August 16, to December 7, 1935, about one-half of this amount having been delivered to and bought by appellant in November and December.
The suit is by appellees, as complainants in the trial court, against appellant, as one of the defendants there, to recover the value of the timber bought by appellant, as aforesaid, and the issue in dispute is whether the timber came from the lands of appellees, or, if a part thereof, how much. On this issue the burden of proof was on the complainants, appellees here, to show with a reasonable degree of certainty that the timber bought by appellant was taken from appellees' land. This proof may be made either directly, as, for instance, by a witness or witnesses who hauled the timber from the land to the party charged with its conversion, or who saw it hauled; or circumstantially, by showing that the trespasser and pretended seller had no available supply of timber, within a reasonable distance, from which he could have obtained the timber, other than from the trespassed lands.
But appellees made no such proof. All the proof made by appellees is substantially stated in the first paragraph of this opinion. As best we can make out from the argument of appellees, it seems to be their position that, upon the proof aforesaid, the burden shifted to appellant to show that the timber bought by appellant came from other land than that of appellees. In this appellees are mistaken. The burden was on appellees throughout to show that the timber came from their land, and, until they had so shown, appellant was not required to make any proof. For all the proof that was made by appellees, the timber bought by appellant may have come from other lands than that of appellees.
The only proof about other lands and the timber cut and hauled therefrom was that introduced by appellant which showed that McLemore was getting timber from other lands, and which tended to show that as a fact the particular timber bought by appellant did come from other lands. Moreover, as already stated, about one-half of the timber delivered to appellant was delivered in November and December. There is no proof in the record that there was any delay between the cutting and hauling of the timber that was taken from appellee's land. The proof shows that the deliveries were by trucks, and it would hardly seem probable that timber cut in August and September, when the weather is usually good, would not be delivered by this sort of conveyance until November and December.
Upon the whole, appellees did not complete the proof required of them by that substantial character of evidence necessary in such cases, and the decree is without sufficient support. The chancellor kept the case under advisement for nearly a year, and must have forgotten what was, and what was not, proved.
Reversed, and decree here for appellant.