Jeffries v. Hargis

50 Ark. 65 | Ark. | 1887

Cockkii.l, C. J.

This is an action of trespass brought by appellant against the appellee. It is a petty controversy about the damage done to a piece of wild land by entering upon it and cutting and carrying away a few trees. The defendant had bought the right to cut the timber from a tract adjoining the plaintiff’s, and through an apparent misunderstanding as to where the dividing line lay, entered ■upon the land in controversy. Counsel upon both sides have confined their inquiries to questions arising on the 'charge to the jury as to what constitutes a trespass, and what evidence was competent to prove the boundary line 'between the two estates. The abstract goes no further, and we do not, therefore, go beyond it.

1. Boundaries: Evidence of. The plaintiff proved by a surveyor, and others who ‘fessed to be familiar with the dividing line between the land claimed by her and that held by the defendant, that the defendant, or his agents under his direction, had crossed the line and cut trees upon her side; but the court instructed 'the jury in effect, that the line could not be proved by any evidence except a certified copy of the record of the survey made by a county surveyor, or by a survey made by the 'mutual consent of the parties. The charge on this point was based upon Section 1182 of Mansfield’s Digest, but is a misconception of that provision of the law, as was pointed out in Ledbetter v. Fitzgerald, 1 Ark. 448, and Smith v. Leach, 44 Ark. 287.

The evidence offered by the plaintiff was competent to establish the identity of the land to which the injury was done. Cases supra.

2. Trespass: Trough mistake. The court also instructed the jury that if the defendant2-crossed the boundary line between the two tracts, through mistake, he was not guilty of trespass, notwithstanding he cut and carried away the trees, it was the defendant’s duty to know the boundaries of his own laud and keep within them, and ignorance thereof would not justify a trespass upon his neighbors land.

The judgment must be reversed and the cause remanded.