Clay v. Postal Telegraph-Cable Co.

Woods, J., delivered the opinion of the court. The second instruction for defendant is defective in omitting any statement of the rule of law applicable if the jury should believe the trespass complained of resulted from the negligence of Eisher, the agent of the corporation in the [410] construction of its line. If Fisher was negligent in sending out a large number of ordinary laborers to clear out the way, and erect its line, over a highway ten miles in length, even though he had instructed these laborers not to invade private property, the company was liable for the injury flowing from its agent’s negligence. The proper inquiry was, not whether Fisher was absent superintending the removal of his camp from Jackson to Clinton, but was the sending out of a gang of irresponsible laborers, without any intelligent and controlling head, with no agent of the company to perform Fisher’s duty of supervising the work, under the evidence in the case, negligence on Fisher’s part, and imputable to his principal ? It could not be contended that Fisher might have absolved his principal from all liability for trespasses done by a gang of ordinary laborers along or near to the highways in the state, beginning at the Alabama .state line and ending at the Mississippi river, by simply absenting himself during the entire progress of the work, on any thought that his presence was necessary at his' camp. The negligence in the case supposed would not be disputed. “Whether Fisher’s absence for the entire day on which this injury is alleged to have been committed, with the excuse he offered for it, disclosed his negligence, should have been presented to the jury by a proper qualification of, or addition to, the second charge of appellee. The fourth instruction given for appellee is wrong, in that it assumes the width of the road along the entire front of appellant’s land to be thirty feet. Public roads in this state may be only ten feet wide, and they cannot exceed thirty feet. The testimony of the witnesses as to the width of the road is unsatisfactory and conflicting, but no witness undertook to say the uniform width was thirty feet. If it was less than that, the .company had no right to cut any timber within fifteen feet from the center of the road. The fifth instruction given for appellee is clearly erroneous, and was tantamount to a peremptory charge for the telegraph [411] -company. The case was permitted to be tried upon the assumption that young trees were not trees, but shrubs, undergrowth, bushes. The mind of the jury was diverted from the real issue hy having itself directed to the cutting of what the instruction denominates shrubs or undergrowth. The evidence does not so much as hint at the cutting of a single shrub. Nor is there any support for the contention that the destruction was of undergrowth. A shrub is a low, small plant, whose branches grow directly from the earth, without any supporting trunk or stem. A tree is a woody plant, whose branches spring from and are supported upon a trunk or body — and the tree may be young or old, small or great. Undergrowth is a term applicable to plants growing under ■or below other greater, plants. To permit the jury to find— nay, to instruct the jury that it might find — that about one hundred and fifty young trees, of varying heights and thicknesses, were shrubs and undergrowth, was fatally erroneous. Every tree on or near the appellant’s entire front of a quarter or half mile was cut down, and yet, the jury is told that, if only shrubs and undergrowth were destroyed, the verdict must be for the telegraph company. The telegraph company cannot successfully shelter a trespass under an order of a board of supervisors, which assumes . to confer the right to cut timber on the lands of private persons which lie along the “ margin ” of the highway. The board of supervisors can confer no right to do any thing outside the limits of the highway itself, and any grant, or attempted grant, in or to the lands on the “margin” — the border, the side — of the road is utterly nugatory. Reversed■