123 Ark. 127 | Ark. | 1916
J. M. Morgan owned a tract of timber land consisting of 205.74 acres, situated in Monroe County, Arkansas, a few miles from Brinkley, and on March I, 1913, he sold and conveyed the merchantable timber on the land to the defendant, T. W. Bunch, and on March 4, 1913, he sold and conveyed the land to the plaintiff, Mrs. Pittman. The sale of the timber to defendant was made through Edmonds, who was acting for Morgan, either as agent or broker. Morgan and Mrs. Pittman both lived in Oklahoma, where the sale of land to Mrs. Pittman was negotiated, and when she purchased the lands she had no knowledge of the sale of the timber to defendant and did not receive any information that the timber had been sold until her husband went to Monroe County in December, 1913, and ascertained that the defendant was cutting the timber on the land and claimed to be the owner.
Defendant commenced cutting the timber soon after his purchase and continued to do so after he was notified, according to the testimony of the plaintiff, that Morgan had sold the land to plaintiff and that she was the owner of the timber as well as the land. Plaintiff instituted three actions against the defendant — two for the recovery of the value of the timber cut from the land, and the other a replevin suit for ties made from timber cut on the land. The three eases were consolidated and tried before a jury, and after the testimony was introduced the court gave to the jury a peremptory instruction to find for the'plaintiff in each of the-cases, and in the amount which the undisputed testimony showed was the enhanced value of the timber in its manufactured state. The defendant asked for instructions submitting the issue to the jury whether the plaintiff or the defendant had title to the timber, and also as to the measure of damages in case there should be a verdict on that issue in favor of the plaintiff.
In Earle Improvement Co. v. Chatfield, 81 Ark. 296, (quoting from the syllabus) we said: “In order to acquire title to wood land by adverse possession, there must be actual use and occupancy of it of such unequivocal character as will reasonably indicate to the owner visiting the premises during the statutory period, not a mere occasional trespass, but exclusive appropriation and ownership.”
In that case there was involved the question of adverse possession for the statutory period of limitation, but the same principle applies in testing the sufficiency of the acts of possession as notice to the world of a claim of ownership so as to prevent acquisition by an innocent purchaser. It would be unreasonable to hold that occupancy of a 200-acre tract of wild land by one man, manifesting no other act of ownership except cutting timber for a short period of two or three days, would be sufficient to put -strangers upon notice that there was an assertion of title by such occupant. We are of the opinion, therefore, that the -court was correct in refusing to submit to the jury the question of the right of the plaintiff to recover, for under the undisputed evidence she was an innocent purchaser of the land without any notice of defendant’s prior purchase of the timber, and was entitled to recover the value of the timber.
In Eaton v. Langley, 65 Ark. 448, the following rule was laid down as the measure of damages: “In replevin for standing timber cut by an innocent trespasser and converted into cross-ties, the owner is entitled to judgment for delivery of the timber so converted, notwithstanding its value has been increased six times; but, if delivery can not be made, the measure of the damage recoverable is the value of the cross-ties less the labor expended on them, provided such expense does not, exceed the increase in value.”
One of these -suits was replevin for the possession of the cross-ties. Therefore the rule stated above is applicable. The same rule is applicable to the other two suits for the value of the timber which had been cut from the land and sold in its manufactured -state. There are numerous decisions of this court on that subject, the last being the recent case of Foreman v. Holloway, 122 Ark. 341, and according to the rule announced there the instruction of the -court fixing the measure of damages was erroneous. F-or that reason the judgment will be reversed and the '-cause remanded for a new trial.