Keirn v. Warfield

Chalmers, J., delivered the opinion of the court. There was much evidence in the case that tended to prove that defendant had cut and used the trees of plaintiff, either intentionally, or without the exercise of proper care and caution to avoid such a trespass. . The instructions given for the plaintiff correctly informed the jury that in either event defendant was liable for the statutory price or penalty for each tree so cut. Several of the instructions given for the defendant! on the other hand (notably the first, second, sixth, seventh, and twelfth), declared that the statutory penalty was only recoverable where the cutting was wilfully, intentionally, and knowingly done on plaintiff’s land, thus excluding a liability where it was done carelessly or recklessly, and without the exercise of proper care and caution to avoid the commission of a trespass. The instructions, therefore, were in direct conflict, and as the testimony was quite as conflicting as the instructions, the jury were left without any certain guide to conduct them to a correct conclusion. The true view of the law on this subject is this : “ The letter of' the statute gives the penalty upou proof of any cutting upon the land of another.” The courts have modified its rigor by holding that the defendant may defeat a recovery by showing that it occurred through accident, inadvertence, and mistake ; provided, reasonable care and caution were taken to avoid the mistake. The burden, therefore, of showing both the unintentional mistake and the exercise of reasonable care to avoid it, s upon the defendant. What will amount to the exercise of [808] proper care must uecessarilv depeud upon the facts of each case ; but certainly it will not be enough to say generally to one’s employees that they must cut only upon the employer’s land, where they are sent, without knowledge of the boundaries, to fell timber in an extensive forest, a portion only of which is owned by the employer, where there are no natural or artificial boundaries visible, and where no directions whatever are given as to what portion of the land is the property of the employer. If the employer is himself ignorant of the true line between himself and neighbor, he should, at least in a general way, indicate to his servants what portion of the land he thinks is his. Where he acts in good faith, he will not be required to make a survey or resort to any unusual or troublesome means to ascertain boundaries not plainly visible ; but he cannot turn his choppers loose in the forest with nothing to guide them save an indefinite and unexplained command that they must cut only upon his land. Mhoon v. Greenfield, 52 Miss. 434; McCleary v. Anthony, 54 Miss. 708. Upon the count in the declaration for the actual value of the trees taken, plaintiff was at least entitled to a verdict and judgment for nominal damages, though no actual value was proved. Every breach of duty or violation of right entitles the party wronged to damages, and if none other be shown, nominal damages should be awarded. 2 Greenl. on Ev., sect. 254; Sedgw. on Dam. 45, et seq. The court erred in excluding Ogelti'ee’s testimony as to the trees or stumps counted by him, in view of that offered to be made and actually made by Sago. We do not understand that in the proffered testimony of Ogeltree there was any assumption of the fact that defendant cut the trees counted by him, but that it was offered to prove the fact that Sago pointed out certain trees which he counted, with the view of proving by Sago that he saw defendant’s employees cutting at that place. This was competent. Reversed and new trial awarded.