34 Fla. 453 | Fla. | 1894
The appellee sued the appellants in trover in the-Circuit Court of Escambia county and recovered judgment for $1,915.82, from which appeal is taken. The-declaration contains four counts as follows: 1st.
The defendants pleaded, to the first count, “never was indebted;” to the 2nd, 3rd and 4th counts, the general issue of “not guilty;” and a special denial that the said property was the property of the plaintiff; and a special denial that the plaintiff was entitled to the possession of said property. There was no proof to sustain the first, second, or third counts, ail of it being confined to the conversion of cypress logs as charged in the fourth count. The evidence is quite voluminous, and it is unnecessary, from the questions presented by the assignments of error, to set it out or discuss it in detail. From the evidence it appears that about the 5th day of December, 1887, the plaintiff, by oral, telephonic, and letter correspondence, consummated a negotiation for the purchase of divers sections of swamp lands in Santa Rosa and Escambia counties, bordering upon the Escambia river and its tributaries, from the Pensacola and Atlantic Railroad Company, but which purpose was not perfected by a conveyance of the premises until the 11th day of January, 1888, when the Railroad Company executed its deed thereto
The evidence is conflicting as to how many logs exactly came from the plaintiff’s lands; indeed, the plaintiff’s evidence as to how many logs he has lost from his lands is not at all as clear or definite as it might and should have been. It is shown that there were adjacent cypress-bearing lands, in which the plaintiff claims no interest, and from which came many of the logs purchased by the defendants at the same time that they purchased logs that came from the plaintiff’s lands. According to the evidence all of these lands were overflown swamps, penetrable only with great ■difficulty, with no distinctly traced lines of division between the holdings of different owners. With the exception of 195 or 198 logs that were cut on Section 20, Tp. 2 N. R. 30 W., claimed by the plaintiff, that
The following charge was requested by the defendants but refused by the court, and exception taken to such refusal: “If you find from the evidence that the logs were cut from the plaintiff’s land without his-authority, and went into the possession of defendants at Ferry Pass, and -were converted by them to their-own use, but that they acted honestly and in good faith and without knowledge that they belonged to the-plaintiff, then the plaintiff would be entitled to recover in this action the value of such logs at Ferry Pass after deducting the expense of cutting them and delivering them to the defendants.”
The precise questions presented by these rulings have not heretofore been passed upon by this court,, though several cases involving different phases of the rule of damages in trover have heretofore been presented and passed upon. In Robinson vs. Hartridge, 13 Fla. 501, there was an innocently mistaken conversion of the cotton of another by the defendant, who-shipped the cotton from Jacksonville, Fla., to New York, where it was sold by his agent, and in that case-the court says : “ It is necessary in this case to deter
IE the parties who committed the trespass did so unintentionally through mistake in the land lines what is the legal measure of damage to the owner who sues in trover for compensation for the loss of-property ■that he has sustained, and in such case, if the defendant is an innocent vendee from an innocent trespasser, what, in his case, is the measure of the damage ? These are questions that are presented in the present case ; and, as before stated, have never heretofore been before this court. In Wooden-Ware Co. vs. United States, 106 U. S. 432, where certain ash timber was knowingly and wrongfully taken from government lands ; and, by the wilful trespassers, taken some distance to a town and there sold to the defendant, who was not chargeable with any intentional wrong, mis-conduct or bad faith in the purchase; and wherein the defendant vendees insisted that the measure of damage was the value of the timber on the ground after it was felled, and not the value it commanded at the distant -town to which it had been transported and where they bought it, the Supreme Court of the United States sajes: “The weight of authority in this country as well as in England favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern ; or if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition.” In' the head-note to that case the rule is concisely .stated .as follows: “Where the
The court also gave the following instruction to the jury, that is assigned as error: “In determining where these logs came from, if you believe from the evidence, not beyond a reasonable doubt, but upon a preponder
At the trial evidence was.permitted to be introduced on behalf of the plaintiff relative to the conversion by defendants of logs from certain sections of the land conveyed by the P. & A. Railroad Company to the plaintiff anterior to January 11th, 1888, the date when said lands were conveyed. The plaintiff proved by E. F. Skinner that he negotiated with the representative-of the railroad company for the purchase of these lands for the plaintiff; that he accepted the railroad company’s offer of sale and accepted the land on the 5th of December, 1887, but that the representative of the railroad did not finally agree to the sale until December 19, 1887, but he testifies also that “we,” (meaning himself and the plaintiff), “had no possession of the land before we obtained the- deed.” In Skinner vs. Pinnep, 19 Fla., 42, it is held that proof of possession of land by the plaintiff is sufficient to enable him to-maintain trover for logs, taken therefrom. From the proof it appears that the plaintiff did not have eitheir the possession of, or a deed to these lands prior toJany. 11th, 1888, he could not, therefore, maintain trover for logs taken therefrom prior to that date, and it was error to permit such proof. This disposes of the-errors assigned and insisted upon.
The judgment of the court below is reversed and a new trial awarded.