Learned v. Ogden

Terral, J., delivered the opinion of the court. In 1878 Elizabeth Ogden departed this life intestate, seized of Black Greek plantation, containing more than 2,200 acres of land, lying north of Coles creek, and near the Mississippi river, in Jefferson county. She left surviving her her husband, W. E. Ogden, Sr., who was entitled to a life estate in said lands as tenant by the curtesy, and who died in 1899, and six children, entitled to said estate in reversion. Two of said children died in infancy, leaving the four others to inherit their interest in said lands. The four children of Mrs. Elizabeth Ogden, in June, 1900, brought suit against appellant, Learned, for trespass on the said Black Creek plantation in cutting, felling, removing, and destroying between January 1, 1879, and the commencement of this suit 30,000 cypress trees standing and growing upon said land, of the value of $2.50 per [779] tree, aggregating $75,000, to the great injury of tbeir inheritance. They recovered a verdict of $68,267.92. IJpon a motion by appellant for a new trial tbe, court required appellees to remit one-half tbe amount of said verdict, and thereupon entered a judgment against appellant for $34,133.96, and from that judgment Learned appeals. As a new trial must be granted, it will be unnecessary tp notice in detail tbe pleadings or tbe evidence. While tbe law of waste, as established in- England, is modified by its transplantation to this country to suit tbe conditions of a new and uncleared country, and to allow a tenant for life to open wild lands for necessary cultivation or to change tbe course of agriculture without being liable for waste, yet tbe cutting down of trees for bis mere profit is here, as there, considered waste. A tenant by tbe curtesy, as an incident to bis estate, may take reasonable estovers of all kinds, and he may cut timber to pay taxes, or to improve tbe land, and when so cut it belongs to tbe tenant, and not to tbe reversioner. But tbe cutting down by tbe tenant of trees for sale is waste, and tbe felling of trees by the tenant or others for a sale of them is an injury to tbe inheritance, for which tbe reversioners have tbeir appropriate action. Trees, when felled, or severed from tbe soil, become personal property, in which tbe tenant in possession has no interest when cut for profit; and tbe reversioner may maintain bis action for the possession of tbe property, or for damages therefor, in tbe same manner and with like effect as if be were tbe owner of tbe estate in possession. A tenant by tbe curtesy in possession has no authority, as such, to represent tbe reversioner, or to bind him or bis estate in any manner whatever. Notes to Allen v. DeGroodt (Mo. Sup.), 14 Am. St. Rep., 628 et seq. (s.c., 11 S. W., 240); notes to Miles v. Miles, 64 Am. Dec., 367 et seq.; 4 Kent, Comm., 74 et seq. Erom these views of tbe subject it results that tbe sale of tbe cypress trees growing on Black Creek plantation by W. E. Ogden, Sr., tbe life [780] tenant, to the defendant, Learned, of date February 8, 1881, was in every respect void, and of no force whatever. As the action of the plaintiffs below is a joint action, we think the court correctly ruled that the plaintiffs were entitled to recover only for the injury to their inheritance inflicted upon it by the defendant prior to the 18th day of January, 1888, when the eldest of the plaintiffs became twenty-one years old, because it is perfectly manifest that for all injuries done to the inheritance since the 18th day of January, 1888, the plaintiffs are barred of all recovery by the statute of limitations relating to actions. A consideration of the record discloses the fact that the evidence of the felling of trees upon Black Creek plantation was not confined to proof of the injuries inflicted by Learned between February 18, 1881 — when it may be assumed, if specific proof justified it, that Learned commenced cutting timber upon the said lands — and January 18, 1888, as to all trespasses after which time plaintiffs were barred of remedy against him; but said evidence extended to any and all injuries done by any and all persons prior to February, 1881, and since January 18, 1888, aggregating many years of trespass upon said plantation, for which Learned was not liable in this suit. The court, in its instructions, correctly confined plaintiffs to a recovery for wrongs done by' Learned or his servants to their inheritance after February 8, 1881, for there is no pretense upon the evidence that he trespassed upon Black Creek plantation before that time, and before January 18, 1888, when the eldest of the plaintiffs came of age, as all trespasses committed by him ’ since said time are. barred. And yet evidence of trespasses committed before February 8, 1881, and since January 18, 1888, was freely and abundantly submitted to the jury, to the great detriment of the defendant. While the instructions put a proper limit upon the period during which plaintiffs could recover, the evidence relating to the cutting of the trees upon the lands to which plaintiffs were entitled in reversion extended [781] to trespasses manifestly committed during a course of many years before and after the time for which defendant was liable to plaintiffs in this action, and for which it is evident from the record that the defendant is not liable in this action. The sawmill books of Learned furnished no evidence to determine his liability in this suit, and were not admissible in evidence, and the stumps of trees counted by McG-raw and the Taylors in nowise tended to fix the number of trees cut by Learned, or his servants under‘his direction, during the period for which he may be made responsible in this suit. In order that plaintiffs may have a recovery from the defendant, it is necessary for them to show with .reasonable certainty what trees were severed by him or his servants from the soil, or what other injury was done by him or his servants to their inheritance, during the period for which the bar of the statute does not apply. The sum here recovered is largely in excess of any sum justified by the evidence. The fact that Ogden, the life tenant, should have protected the inheritance from injury, and might have sued for the injuries of others thereto, does not affect their right of action. Nor does his becoming the guardian of his minor children put the statute of limitations into operation so as to affect their right of action, for it is only where the legal title to the property is in the guardian that the statute of limitations begins to run. The legal title here was in the plaintiffs. The verdict and judgment are contrary to the law and the ■ evidence, and must be reversed. Reversed and remanded.