Opinion
No. 38635.
January 26, 1953.
1. Adverse possession — burden of proof.
In an action for trespass upon described land where the defense was that the defendants had acquired title by adverse possession, the burden of proof was upon them to establish this affirmative defense.
2. Adverse possession — color of title — deeds — insufficient description.
A deed with the description "1/3 of N 1/2 of SW 1/4" of a certain section, township and range without stating where the 1/3 is located therein is insufficient as color of title, and was not available to extend to it constructively the actual possession which claimants had over other lands within the effective calls of their deed.
3. Adverse possession — wild lands.
Where the strip of land in controversy was wild lands, never cultivated nor improved nor fenced, proof that the adverse claimants who were without valid color of title had occasionally cut firewood and some fence posts therefrom, to which the owners objected, such proof was insufficient to establish title by adverse possession.
4. Trespass — statutory penalty for cutting trees — peremptory instruction, when improper.
In an action for the statutory damages for cutting timber on plaintiff's strip of land it was error to grant a peremptory instruction for defendants when they knew the location of the northeast corner of the plaintiff's land and necessarily knew that a line projected west therefrom and which would be the true line would exclude the strip in question and when instead they followed an old, crooked and dim road as the dividing line.
5. Trespass — statutory penalty for cutting trees — what must be shown to recover — instructions.
In order to recover the statutory penalty for cutting trees on the lands of another, the burden of proof is on the plaintiff to show, and the instructions must so state, that the cutting was willfully and wantonly done or by reason of such gross negligence as would show an indifference to consequences as affecting the rights of the plaintiff, so as to be tantamount to willfulness.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Leake County; W.E. McINTYRE, SR., Judge.
W.W. Pierce, for appellant.
I. The trial court erred in giving the instruction at the request of the appellees that if the jury believe from a preponderance of the evidence in this case that D.E. Morrow, in July of 1902, acquired a deed to a 1/3 of the W 1/2 of SW 1/4 Section 26, T. 9N, R. 9E, Leake County, Mississippi, and that in December 1902, he took possession of said land by moving on same, and that if you further believe from a preponderance of the evidence in this case that he took possession of the land to the north side of the old settlement road, as testified about, and that since December 1902 the said defendant has held the open, notorious, continued, peaceable, adverse possession of said land uninterrupted for ten years or more, then title to said land so occupied has ripened in the defendant, D.E. Morrow, and,
The court further instructs the jury if you so believe from a preponderance of the evidence then the defendant, D.E. Morrow, owned the timber on said land north of said settlement road and had the right to sell the same, neither he nor Jim Ferguson owe the plaintfif anything for any part of the timber sold. Alexander v. Polk, 39 Miss. 737; Bullock v. Greer, 181 Miss. 190; Cook v. Mason, 160 Miss. 811; DeDeaux v. Bayou Delisle Lbr. Co., 112 Miss. 325; Delk v. Hubbard, 153 Miss. 869; Evans v. Shows, 180 Miss. 518; Harper v. Tapley, 35 Miss. 506; Jones v. Gaddis, 67 Miss. 769; Leavenworth v. Reeves, 106 Miss. 722; Lovejoy v. McKibben, 113 Miss. 369; Mitchell v. Bond, 84 Miss. 72; Neal v. Newburger Co., 154 Miss. 691.
II. The trial court erred in giving the instruction requested by the defendants that an agreed line is just as good and binding as an established line even by government monuments or surveys; and if you believe by a preponderance of the evidence in this case that the road has been recognized as the line for ten years or more as an agreed boundary between the properties to this suit then such road represents the true boundary and no survey no matter how accurate can disturb such established line, or legally change the same, so far as this suit is concerned. Life and Casualty Co. v. Cooley, 150 Miss. 502; Kneale v. Dukate Lopez, 93 Miss. 201; Solomon v. City Compress Co., 69 Miss. 319; Williams v. City of Gulfport, 163 Miss. 334.
III. The trial court erred in giving the instruction requested by the defendants that under the evidence in this case the plaintiff is not entitled to recover the statutory penalty for the cutting of said timber. Alexander v. Polk, 39 Miss. 737; Alliance Trust Co. v. Hardware Co., 74 Miss. 584; Baldwin v. Anderson, 103 Miss. 462; Butterfield Lbr. Co. v. Guy, 92 Miss. 361; Craigo v. Vetter, 120 Miss. 103; Darrill v. Dobbs, 78 Miss. 912; Deason v. Taylor, 53 Miss. 701; DeDeaux v. Bayou Delisle Lbr. Co., 112 Miss. 325; Delk v. Hubbard, 153 Miss. 869; Evans v. Shows, 180 Miss. 518; Gaddis v. Jones, 67 Miss. 761; Jenkins v. Trager, 40 Fed. 726, 136 U.S. 651, 34 L.Ed. 557; Keirn v. Warfield, 60 Miss. 799; Mitchell v. Bond, 84 Miss. 72; Mhoon v. Greenfield, 52 Miss. 438; Miller v. Wesson, 58 Miss. 831; Odom v. Luehr, 57 So.2d 867; Parker v. Foy, 43 Miss. 260; Sansing v. Thomas, 52 So.2d 478; Therrell v. Ellis, 83 Miss. 484.
IV. The trial court erred in refusing to grant the instruction requested by appellant that if the jury believed from a preponderance of the evidence that the defendants, D.E. Morrow and Jim Ferguson, while acting together with a common design to cut and remove the timber along the north side of the South 1/3 of the West Half of the Southwest Quarter of Section 26, Township 9 North, Range 9 East, in Leake County, Mississippi, did enter upon the property and land of plaintiff, by servants and employees, without the consent of plaintiff, and within one year next before the filing of this suit and cut down and remove from the lands of plaintiff, 40 pine trees, 5 red oak trees, 7 post oak trees, 9 white oak trees and 1 hickory tree; and you further believe from a preponderance of the evidence that such cutting and removing of such trees was recklessly and carelessly done without taking the proper precaution to prevent a trespass upon the land of plaintiff, then the defendants are liable to plaintiff in the sum of $15.00 per tree for each tree so cut and removed, and it is your sworn duty to find and return a verdict for plaintiff, W.Y. Thrash, for $15.00 for each you may find from the evidence was so cut and removed from plaintiff's land. Odum v. Leuhr, 57 So.2d 867; Pippin v. Sims, 211 Miss. 194; Sansing v. Thomas, 211 Miss. 727.
V. The trial court erred in refusing the instruction requested by appellant that a person is presumed to have intended to do what he actually does, and in the absence of a proper showing by the evidence in this case that the defendants made an honest mistake in cutting plaintiff's timber, if any, then the defendants are held in law to have wilfully cut plaintiff's timber, and are liable to the plaintiff for $15.00 for each tree so cut, and in addition thereto, the actual value of the trees cut, if any, as shown by the testimony. Bates v. Brevard Woods Stave Co., 115 Miss. 588.
VI. The trial court erred in refusing the instruction requested by appellant that the burden of proof is upon the defendants, Jim Ferguson and D.E. Morrow, to show that the plaintiff's timber, if any, was cut through accident, inadvertence and mistake after the exercise of reasonable care and caution to avoid it. Keirn v. Warfield, 60 Miss. 799.
VII. The trial court erred in refusing the instruction requested by appellant that to constitute adverse possession two facts must concur: First, there must be an entry, under color of right, claiming title, hostile to the true owner and the world. Second, that entry must be followed by possession, and appropriation of the land to use, publicly and notoriously, so that the other claimants may take notice, and others may be cognizant of the fact. If either of the above elements are missing then there cannot be any adverse possession, so as to ripen into a title by adverse possession in a space of ten or more years. Dixon v. Cook, 47 Miss. 226.
VIII. The trial court erred in refusing to grant the instruction requested by appellant that the court instruct the jury for the plaintiff that even though you may believe from the evidence that the defendant, D.E. Morrow, occasionally cut wood off the land upon which the trees sued for in this suit were cut by the defendants, that fact is not sufficient to give the defendant, D.E. Morrow, title to the land or the trees thereon, and is no defense to this suit, unless you further believe from the evidence that the said D.E. Morrow exercised other rights of ownership over the land, such as fencing, pasturing, and otherwise using and paying the taxes thereon, to the exclusion of W.Y. Thrash, the plaintiff. DeDeaux v. Bayou Delisle Lbr. Co., 112 Miss. 325; Delk v. Hubbard, 153 Miss. 869; Ivey v. Geisler, 56 So.2d 501; Leavenworth v. Reeves, 106 Miss. 722; Stevens Lbr. Co. v. Hughes, 38 So. 769.
Sanford Alford, for appellee Ferguson.
I. The trial court was not in error in granting the instruction submitting to the jury the question of whether or not the appellee, D.E. Morrow, had acquired title to the land from which the trees were cut and removed by adverse possession. Kornegay v. Montgomery, 12 So.2d 423; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137.
II. The trial court was correct in granting the instruction to the effect that an agreement line is just as good as an established line by government monuments or surveys and further instructing the jury that if they believed by a preponderance of the evidence in this case that the road had been recognized as the line for ten years or more, then such road represents the true boundary. Kornegay v. Montgomery, 12 So.2d 423; Archer v. Helm, 11 So. 3.
III. The trial court was correct in granting the instruction that under the evidence in this case the plaintiff is not entitled to recover the statutory penalty for the trees cut. Seward v. West, 150 So. 364.
Barnett Barnett, for appellee, Morrow.
I. The jury was properly instructed as to the law of adverse possession and the finding and verdict of the jury was warranted by the evidence. Bynum v. Stinson, 81 Miss. 25, 32 So. 910; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; DeDeaux, et al. v. Bayou Delisle Lbr. Co., et al., 112 Miss. 325, 73 So. 53; Evans, et al. v. Harrison, 130 Miss. 157, 93 So. 737; Gillespie v. Magruder, 92 Miss. 511, 46 So. 77; Greer v. Picket, 127 Miss. 739, 90 So. 449; Page v. O'Neal, 207 Miss. 350, 42 So.2d 391; Schuler, et al. v. McGee, 127 Miss. 873, 90 So. 713; 2 C.J.S., Adverse Possession, 60(1), 82; Sec. 711, Code 1942.
II. The court correctly instructed the jury that the appellant was not entitled to the statutory penalty of $15.00 per tree. Thompson v. Reed, et al., 199 Miss. 129, 23 So.2d 88; Sec. 1071, Code 1942.
The plaintiff, W.Y. Thrash, brought this suit against the defendants D.E. Morrow and Jim Ferguson to recover damages, both actual and as statutory penalties, for the cutting of 63 trees in the S 1/3 of the W 1/2 of the SW 1/4, Section 26, Township 9, Range 9E in Leake County, the same having been cut from a strip of land lying south of the north boundary line of the plaintiff's land and north of an old, crooked and dim wagon road, partly grown up in bushes, claimed by the defendant Morrow to be an agreed line between his land to the north and the land of the plaintiff.
The plaintiff sued for the sum of $239.00 as the actual value for the trees cut and removed and the sum of $945.00 as statutory penalties at $15.00 per tree. There was a peremptory instruction granted as to the statutory penalties sued for, in favor of both the defendant Morrow and his co-defendant Ferguson, to whom Morrow sold the timber and by whom it was cut and removed, and the giving of that instruction is one of the errors assigned on this appeal. The appellant further assigns as error the giving of other instructions for the defendants which resulted in a verdict by the jury in their favor, even as to actual damages, but which need not be discussed in view of the conclusion that we have reached on the main issue involved.
The plaintiff alleged and proved beyond controversy that he purchased by a good and valid deed from the Henderson-Molpus Lumber Company in 1920 the S 1/3 of the W 1/2 of the SW 1/4 of the Section, Township and Range aforesaid, and that the timber in controversy was located within the calls of his deed thereto. The defendant Morrow in his answer to this suit in the circuit court set up as an affirmative defense that he had acquired title to the strip of land between the alleged northern boundary line of the plaintiff's land and the old meandering road to the south thereof by virtue of the fact that in 1902 he acquired a deed from C.A. Brantley and wife for the central 1/3 of the said W 1/2 of the SW 1/4, and that the said C.A. Brantley, who then owned the land both to the north and to the south of the said old wagon road, had agreed that the said defendant might consider the old road as the southern boundary line of the land being conveyed to him; and that thereafter, and prior to 1920, certain predecessors in title of the plaintiff Thrash, to-wit Bailey, Phillips and Latham, had acquiesced in his contention that the old road was the southern boundary line of the land that the defendant Morrow had purchased from Brantley and wife, and that although the plaintiff purchased without knowledge of the alleged agreement, the defendant Morrow had acquired title by adverse possession of the strip of land between the old road and the true northern boundary line of the S 1/3 of the W 1/2 of the SW 1/4 purchased by the plaintiff from the Henderson-Molpus Lumber Company, grantee of Latham.
(Hn 1) The burden of proof was upon the defendants to establish this affirmative defense. It is uncontroverted that the strip of land in question is woodland and that the land both to the north and to the south thereof is woodland; that there is not now and never has been any fence either along the old road or along the true dividing line between the parties to the north thereof; and that none of the lands have been cultivated and no improvements have been placed thereon.
It is further uncontroverted that if a line should be projected due west from a certain common corner which has been recognized by both the defendant Morrow and the plaintiff and his predecessors in title for a period of 50 years, as the northeast corner of the lands now owned by the plaintiff, such line would leave the strip of land in controversy to the south thereof and within the calls of the plaintiff's deed.
Moreover, the only acts of ownership and control that the defendant Morrow claims to have exercised over the strip of land in controversy is that he cut firewood and some fence posts thereon prior to 1920, and he contends that he and his tenants who reside in Section 27 of the same township and range have cut firewood from this strip of land whenever at any time they needed to do so. Whereas the plaintiff says that since 1920 this was done on only one occasion and that he made complaint to the defendant on account thereof. It is undisputed however that the plaintiff sold the timber on his own land to his son in 1942 or 1943 and that his son cut and removed such timber as was then growing on the strip of land in controversy and without any protest or objection of the defendant Morrow on account thereof. The wife of the defendant Morrow testified that no one other than themselves had claimed this strip of land since 1920, when the plaintiff purchased from the Henderson-Molpus Lumber Company as aforesaid, except the Thrashes.
(Hn 2) The defendant Morrow is unable under the law to extend his possession of such land as he may have occupied or used under his purported conveyance from the Brantleys in 1902, so as to include the land in question for the reason that he had no color of title to this strip of land. In fact, the deed which he obtained from the Brantleys on July 15, 1902 — the only deed upon which he relies — purports to convey "1/3 of N 1/2 of SW 1/4 of Sec. 26, T. 9, R. 9" without stating where this 1/3 is located therein. In other words, he went into possession of the central 1/3 of the W 1/2 of the said SW 1/4 without any deed thereto. Therefore the principle in regard to a grantee's possession of a part of the land within the calls of his deed being extended to cover all of the land within the calls thereof is wholly inapplicable in the instant case; his deed has no calls.
(Hn 3) We are, therefore, of the opinion that the only manner in which the defendant Morrow could have acquired title to the strip of land in question is to have had the open, notorious, actual, adverse, hostile and continuous possession thereof for the statutory period. He failed to prove in support of his affirmative defense such facts as would have conferred title in him by adverse possession.
It was, therefore, error for the court to have submitted to the jury under the instructions complained of the issue of whether or not the defendant Morrow had acquired the title by adverse possession. If a peremptory instruction had been requested on behalf of plaintiff as to actual damages we would be justified in rendering judgment here for the sum of $239.00 as actual damages since there was no dispute whatever as to the number of trees cut, where they were cut, or as to the value of the same.
(Hn 4) We think it was also error to have granted a peremptory instruction in favor of both defendants as to their alleged liability for the statutory penalties sued for. Under the facts shown it was clearly a case for the jury on that issue insofar as the defendant Morrow is concerned since he admitted to the surveyors and other persons and testified as a witness that he had known the location of the northeast corner of the plaintiff's land as a well recognized corner for the last 50 years, and he necessarily knew that a line projected west to the northwest corner of the S 1/3 of the W 1/2 of the SW 1/4, purchased by the plaintiff from Henderson-Molpus Lumber Company, would have excluded the strip of land in question from the central 1/3 thereof claimed by said defendant. He showed his timber-grantee Ferguson where to cut, telling him to cut down to this old, crooked, dim wagon road, and according to the testimony on behalf of the plaintiff the said defendant knew that the plaintiff had been claiming all of the land within the calls of his deed since the year 1920.
As to the defendant Ferguson who purchased the timber from his co-defendant Morrow and cut the same, the established and well recognized northeast corner of the plaintiff's land was pointed out to him before he cut the timber and he conceded that he had never during his 15 years of experience in purchasing timber ever bought the same according to an old, crooked and dim road as a line. Since there was nothing on the ground to indicate that his vendor had adverse possession of the strip in question, he should have known that a line projected west from the corner admitted by both his grantor and the plaintiff to be the northeast corner of the plaintiff's land, would have constituted the northern boundary of the strip of land in controversy. The proof as to whether he acted willfully and wantonly and in reckless disregard of the rights of the plaintiff, or was so grossly negligent as to show indifference as to what constituted the true line may not be as strong as that made against his co-defendant Morrow. But we now hold only that it was error to have granted the instruction which told the jury, in substance, that they should find in favor of both defendants as to the statutory penalties, since that is the question now before us.
(Hn 5) The appellant also complains of the refusal of certain instructions requested by him on the issue of the statutory penalties, but we are of the opinion that the first of these instructions was erroneous in that it omitted the requirement that the cutting of the trees in question was done with a willful and wanton disregard of the rights of the plaintiff or by reason of such gross negligence as to evince an indifference to the consequences as affecting the rights of the plaintiff in the timber.
As to the refused instructions on the burden of proof it is true that the plaintiff was entitled to have the jury instructed that the burden of proof was upon the defendants to establish their claim of title to the timber by adverse possession, (if there had been sufficient proof on that issue to go to the jury) but nevertheless the burden was upon the plaintiff to show that even though the defendants had failed to show title by adverse possession their action in cutting the timber was willfully and wantonly done, or was done by reason of such gross negligence as would show an indifference to consequences as affecting the rights of the plaintiff, so as to be tantamount to willfulness.
It follows from the foregoing views that the issue of adverse possession should not have been submitted to the jury, and that the case must be reversed for the assessment of actual damages for the timber cut and removed from the strip of land in controversy; and that the jury should be permitted to pass on the question as to the liability of the defendants for the statutory penalties sued for, under proper instructions.
Reversed and remanded.
Hall, Holmes, Arrington and Lotterhos, JJ., concur.