Merriwether v. Dixon

Willie, J. —Appellant seeks to reverse the judgment of the court below, on the ground that the verdict was contrary to the evidence and the charge of the court. In support of this position it is urged, 1st, That the license under which appellee justified was a limited one, and that appellee exceeded his authority thereunder in the amount and value of the timber cut by him from appellant’s land; 2d, That the license was of no force at the time of the commission of the trespasses complained of, because [18] more than two years had then elapsed since it was granted. The evidence upon both of these points was somewhat uncertain and contradictory. There was enough, however, upon the first to warrant the jury in coming to the conclusion, that appellee did not transcend his authority and cut trees of more value and in greater quantities from appellant’s land than he was justified in cutting under the permission granted him, and their verdict will not be disturbed for their finding upon this point. Some uncertainty exists also as to the exact time when the license was given; but, in the view which we take of the second objection urged to the verdict, this will not become a material question. The second charge of the court was to the effect that, if the license were not given within two years before the commission of the acts complained of, it afforded no justification to the defendant. There was no proof that this limit as to time was fixed by the terms of the permit itself, and we are not informed of any law of limitation that applies to the case. It is certainly not expressly provided for by our statute of limitations, nor can an analogy be drawn between this and any of the cases mentioned in that statute, wherein the lapse of two years will bar the right of action. This-was not a contract or promise upon which an action would lie, but a mere license, which might be recalled at any time by the grantor, and which, until withdrawn or satisfied in this case, the appellee had a right to consider in full force. The privilege of cutting appellant’s timber was to commence so soon as appellee removed to his land, which he did in the latter‘part of the summer or the beginning of the fall of 1854. If the court was even correct in prescribing the period of two years as a bar to appellee’s right under the license, it was error to make it commence at the date of the permission, and not at the time of the removal. He should have been allowed a reasonable time [19] to make that removal, to he determined by the jury, and, if in their judgment it had been accomplished within such time, they would have been fully justified, under the testimony, in finding that the acts complained of were committed within two years from the time when limitation commenced running against his rights under the license. The jury having come to a proper verdict under an erroneous charge, and the evidence, though conflicting, being sufficient to reasonably satisfy the mind that their conclusion was correct, the verdict will not be disturbed. (6 Tex.; 7 Tex., 556; 8 Tex., 439; 16 Tex., 94; 22 Tex., 37.) The judgment of the court below is Affirmed.