Collins v. Louisiana Sawmill Co.

PROVOSTY, J. [1] Plaintiff claims damages of defendant for trespass by the cutting and removing of timber from the S. W. % of the N. E. % of the S. E. % and the N. E. % of section 23, township 10, range 3 W., parish of Winn. Plaintiff does not rely upon title, but purely upon possession. While defendant has very conclusively proved that plaintiff was not in possession of this land at the time the timber was taken, plaintiff has made but a very vague and feeble attempt to show the contrary. In fact, plaintiff himself assisted in the work. True he says he protested; but his testimony on other points is so at variance with that of several witnesses that his statement on this point can hardly be allowed any weight, especially that one witness for defendant testified that, even after the present suit had been filed, the plaintiff admitted to him that he was not claiming this land. Plaintiff’s only pretense to proof of possession is by invoking the principle of possession of part, with title to whole, being possession of whole; but, in order to have the benefit of this principle, the person must have been in possession of part, and this the plaintiff has not shown. He must also show title to the whole, and this, also, the plaintiff has not shown. His only attempt in that direction having been by parol evidence, which was duly objected to as not being admissible for showing title to real estate, and which, as a matter of course, was not. [2] The judgment was only of nonsuit; it should have been absolute. The judgment appealed from is amended by being made absolute, instead of merely of nonsuit, and, as so amended, is affirmed. Plaintiff to pay all costs.