Bates v. Burt & Brabb Lumber Co.

130 Ky. 608 | Ky. Ct. App. | 1908

Opinion of the Court by

Chief Justice O’Rear.

This is the second appeal' of this case. The merits of the case, as presented by the somewhat imperfect record before us, impress us that appellee, who sues upon a breach of warranty, did not show itself entitled to recover for a greater number of trees' than were admitted in appellant’s answer. On the other hand, the damage done to.appellants’ lands unnecessarily by appellee’s agents in removing the timber, and the value of the trees taken by them that were not branded, as found by the circuit court, 'practically offset the value of the trees lost to appellee by. the failure of the title to part of the branded timber. In addition, we think appellants should be allowed for the damage done by appellee’s leaving the tops and debris of the timber felled by them. The sale of standing timber includes the right to remove it in a judicious manner, but does not include the right to cut it down and leave it, or any part of it, so that it will do damage to the lands of the grantor or owner of the principal estate. On the whole, we think the. accounts of the parties are about equal. Limitation on appellants’ account is saved by the disability of the female appellant.

Judgment affirmed on the cross-appeal, and reversed on the original appeal, with directions to the lower court to dismiss the petition. Each party will pay their own coster in this court.