Montgomery v. Southern Power Co.

November 29, 1910. The opinion of the Court was delivered by The plaintiff by her deed of conveyance granted to the defendant an easement, "to go in and upon that tract of land situated in said county and State, bounded by lands of W.K. Plyler, Dr. W.M. Crawford estate (et al.), and to construct and maintain in, upon, and through said premises in a proper manner with poles, towers, wires and other necessary apparatus and appliances, a line for the purpose of transmitting power by electricity, together with the right at all times, to enter upon said premises for the purpose of inspecting said lines and making necessary repairs and alterations thereon, together with the right to cut away and keep clear of said lines all trees and other like obstructions that may, in any way, endanger the proper operation of the same." As the consideration, the defendant by the same deed agreed to pay two hundred and fifty dollars and "to cut and cord all timber except such trees as may be selected by Mary A. Montgomery for milling purposes, those to be cut into lengths named by owner." This paper meant that the defendant should have a right of way over the land to the extent reasonably necessary to the construction and operation of its line to be used in transmission of power by electricity. The defendant entered upon the land and cut out a way for its line. Thereupon the plaintiff brought this action for damages, alleging that *Page 296 the defendant had agreed that the width of the right of way should be limited to eighty feet; that the failure to express this agreement in the conveyance was due to the fraud and misrepresentation of the defendant as to the purport of the paper; that the defendant in a reckless, wanton and wilful manner had cut through the plaintiff's woods an opening varying in width from fifty to one hundred feet beyond the eighty feet right of way which the plaintiff had agreed to convey. The defendant by its answer set up the deed of conveyance of the right of way above recited, denying that it had been procured by fraud or misrepresentation, and alleged that no injury had been done to the land beyond that authorized by the grant from the plaintiff. The defendant appeals from a judgment of five hundred dollars in favor of the plaintiff. The exception assigning error in the admission of evidence of a parol agreement at variance with the written agreement of the right of way was taken under a misapprehension, for the Court held the plaintiff bound by the written contract and, whenever objection was made, either excluded or struck out all testimony offered for the purpose of showing that the right of way was to be limited to eighty feet. The position was taken on the motion for nonsuit that there was a fatal variance between the allegations of the complaint and the evidence, in that the allegation was of a trespass beyond a right of way limited to eighty feet, and the evidence offered by the plaintiff was of a trespass by the cutting of timber in excess of what was reasonably necessary for the construction and maintenance of defendant's line for the transmission of power by electricity. The position is not well taken. That which gave character to the action was the allegation in the complaint of defendant's trespass on the land of the plaintiff by cutting more of the timber than was authorized by the contract. The difference between the pleadings and the proof *Page 297 as to the extent of the cutting which was authorized by the contract was a mere detail, having no effect except to reduce the damage recoverable. The variance was not such as to change materially the issue presented by the pleadings or to subject the defendant to surprise or other disadvantage. The defendant further contended on the motion for nonsuit that the plaintiff could not in this action recover actual damages without proof of wilfulness or wantonness, because there was no allegation of negligently cutting trees beyond the right of way granted. The unsoundness of this position is made evident by observing that the complaint would have stated a cause of action if it had contained no charge either of negligence or wilfulness or wantonness, and merely alleged that the defendant had cut the plaintiff's timber beyond the right of way granted. Obviously no degree of care could save the defendant from liability for the value of any of plaintiff's timber cut without her consent. No allegation of negligence therefore was essential to the recovery of compensatory damages. Baldwin v.Postal Co., 78 S.C. 419, 59 S.E., 67. As there was evidence of at least an unintentional trespass beyond the right of way, a nonsuit as to the entire case was properly refused. We are unable, however, to agree with the Circuit Judge that there was evidence of a wilful or wanton trespass, and are of the opinion that there should have been a nonsuit as to the cause of action for punitive damages. These facts appear from the evidence on behalf of the plaintiff: L.B. Sloope, the agent of the defendant, who acquired for it the grant from the plaintiff, put a number of men to work cutting out the way for the line. According to the survey the width of the way cut by these men ranged from one hundred to two hundred and seven feet, and was in several places greater than was necessary to protect the defendant's towers and wires from falling timber. But there was no evidence of wilfulness or wantonness on the part of the cutters. *Page 298 The contention of plaintiff's counsel that like evidence was held sufficient to carry the case to the jury on the issue of wilfulness and wantonness, in Faris v. American Tel.Co., 84 S.C. 102, is not well founded. There the trespass was committed when the agent of defendant in charge knew that he had not obtained the requisite signatures to the paper under which the defendant entered; the subordinate agent in charge of the cutting paid no attention to a warning that the company had no right whatever to cut the trees; and no measurement or other precautions were taken, although the special and great value of the trees to the church for shade and beauty as well as association was so evident that the mind even of a careless man could not have failed to advert to the duty to take careful measurements so as to spare all valuable trees not endangering the wires and poles. The facts are very different in this case. Indeed evil intent and wanton disregard of plaintiff's rights were practically disproved by the testimony of Hugh Montgomery, plaintiff's son, who testified that he complained to the men that they were cutting a way unnecessarily wide, that they referred him to Mr. Sloope, the man in charge; that he saw Mr. Sloope and "he got after the hands about it and told them not to cut any more." This evidence leads to the inference of negligence in not providing more careful supervision of the cutters, but it leads away from any inference of intentional or wanton wrong, and shows a purpose to respect and guard the rights of the plaintiff. We think therefore that the Circuit Judge erred in not holding that the defendant could be held liable only for actual damages. The defendant was not allowed by the Court to elicit from its witness N.B. Cousar his estimate of the number of trees unnecessarily cut in opening the right of way. This evidence was clearly competent and important. The witness did not claim to be specially expert in making such estimates. But he had made an examination and testified that he would know how to make the estimate *Page 299 about as well as anyone else. In cases like this the quantity of timber destroyed must necessarily be ascertained by estimate, and the estimates of practical men of affairs are admissible. Virginia-Carolina Chemical Co. v. Kirven, 57 S.C. 445,35 S.E., 745; Dent v. South Bound Ry. Co., 61 S.C. 329,39 S.E., 527; Perry v. Jefferies, 61 S.C. 292,39 S.E., 515; Wofford v. Clinton Cotton Mills, 72 S.C. 346,51 S.E., 918. We think that the judgment of the Circuit Court should be reversed, and the cause remanded to that Court for a new trial, but the Court being equally divided, the judgment of the Circuit Court is affirmed. MR. CHIEF JUSTICE JONES concurs.