Bollinger-Franklin Lumber Co. v. Tullos, No. 21663

No. 21663 | Miss. | Mar 15, 1921

Holden, J.,

delivered the opinion of the court.

This is a suit to recover the statutory penalty from appellant for the cutting of trees owned by the appellees as tenants in common, and resulted, in a verdict of four hundred dollars for them The appellees, Mrs. Tullos and her cotenants, inherited the timber from her deceased husband, and brought this , suit as tenants in common. One of these joint owners was not a party plaintiff to the suit, nor did he appear at the trial of the case. The appellant, urges several errors for reversal on direct appeal, and the appellee seeks reversal on cross-appeal.

The record discloses several errors committed by both sides at the trial, but we shall act only upon one of them pointed out by the oppellant, because this will result in a reversal of the judgment, and the. other errors will probably not occur again on the second trial.

Here is the reversible error in the case: The suit was predicated upon two grounds in the declaration, one for actual damages, and the other for the statutory penalty. However, there being no proof to sustain the count for actual damages, it was abandoned, and the case was tried solely upon the count for the statutory penalty. The proof for the plaintiff was sufficient to recover the statutory penalty, except for the fact that the plaintiff failed to allege and prove that none of the joint owners or tenants in common consented to the cutting of the trees. No proof was offered to show that all and each of the joint owners of the timber, one of whom was not a party to the litigation nor present at the trial, had not consented to the cutting of the trees. This was reversible error, because the burden is upon him who invokes the statute to prove its essential requisites before he' can recover., and one of the requirements of the statute is that the cutting was done without the consent of the owners; therefore, if any one of the tenants in common consented to the cutting, then such consent would bar his recovery and also defeat all of the others. Section 4977, Code of 1906 (section 3246, Hemingway’s Code); Therrell v. Ellis, 83 Miss. 494" court="Miss." date_filed="1903-10-15" href="https://app.midpage.ai/document/therrell-v-ellis-7989091?utm_source=webapp" opinion_id="7989091">83 Miss. 494, 35 So. 826; Haley v. Taylor, 77 Miss. 867" court="Miss." date_filed="1900-03-15" href="https://app.midpage.ai/document/haley-v-taylor-7988416?utm_source=webapp" opinion_id="7988416">77 Miss. 867, 28 So. 752, 78 Am. St. Rep. 549.

The statute providing the penalty for cutting trees is plain and unambiguous., and must be followed substantially by the pleadings and proof in order to recover under it; is a penalizing statute and is to be strictly construed. We may point out that the declaration in this case should have alleged that the cutting of the trees was without the consent of the owners; but we reverse on the ground that the appellees failed to prove that no one of the tenants in common consented to the cutting. The right of tenants in common of land to sue for the statutory penalty for cutting trees is joint, and whatever bars one will preclude the others.

The lower court told the jury in an instruction for the defendant that the' plaintiff could recover both the statutory penalty and actual damages for the cutting of the trees. Of course this is error, as decided by this court several times. There are other errors in the record which we shall not comment on, as we assume that the record will be cleared up and freed from error on the second trial.

Reversed and remanded.