H. D. Williams Cooperage Co. v. Clark

Kirby, J., (after stating the facts). Appellant contends that the verdict is excessive, and that the court erred in giving instruction No. 2 over its objection and in refusing to give the three instructions requested by it. Said instruction numbered 2 relates to the statute requiring persons desiroous of cutting and removing timber from any land in the State for the purpose of making staves or to be sawed into lumber, when the boundaries of.the land are not already ascertained and known, to have such lands surveyed and the metes and bounds marked and plainly established before cutting the timber therefrom. The court’s action in giving this instruction can not be reviewed here, because of the general objection made to all three of the instructions given, as follows: “To the giving of which the defendant objected and excepted and had its exceptions noted of record.” This objection was general and embraced all the instructions in gross, and such objections are not considered here if any of the instructions are good. Wells v. Parker, 76 Ark. 42; Young v. Stevenson, 73 Ark. 480; Dowell v. Schisler, 76 Ark. 482. Appellant’s exceptions to the refusal to give its three requested instructions were likewise in gross. “To the court’s refusal to give the three above instructions the defendant at the time objected and saved its exceptions, which were noted of record,” and it is equally true that a general exception to the refusal to give several instructions requested collectively will not be considered on appeal, if any of such instructions are bad. Young v. Stevenson, supra. Two of the requested instructions were covered by one already given by the court, and it is doubtful whether the other was a correct statement of the law. It was not claimed that the lands of the cooperage company adjoining those of the appellee, from which the timber was cut, had been surveyed and the boundaries ascertained and known, nor did appellant attempt to show that its employees engaged in cutting the timber were acquainted with the boundaries of its lands, further than to say they had a plat of the lands in their possession. A plat of land does not necessarily designate the boundaries thereof on the ground plainly and clearly where it could not be easily mistaken, and there was some testimony from which it could be inferred that the foreman of the employees engaged in cutting the timber knew where the boundary line of Clark’s land was before the timber was cut. The questions whether appellant had reasonable cause to believe and did believe at the time the trespass was committed that the timber belonged to it, as well as the value thereof, were fairly submitted to the jury and upon conflicting testimony they found in appellee’s favor. The testimony is sufficient to sustain the verdict, if it was the intention of the jury to allow treble damages, which the law warranted under the circumstances. Doniphan Lbr. Co. v. Case, 87 Ark. 169; Newhouse Mill & Lbr. Co. v. Avery, 101 Ark. 34'. Finding no prejudicial error in the record, the judgment is affirmed.