85 So. 196 | Miss. | 1920
delivered the opinion of the court.
The appellant, Clozelle Ladnier, sued the Ingram Day Lumber Company for damages for the cutting of certain designated trees, belonging to appellant. The first count was for the willful cutting of these trees predicated upon section 4977, Code of 1906 (section 3246, Hemingway’s Code). The second count was for the value of the lumber manufactured out of these trees. The third count was for damages to the land, grass and small growth of timber on these lands. We find nothing in the testimony to sustain the third count', and pass to a consideration of the other questions presented by the record. The defendants admitted liability for the cutting of certain trees under either, but not both counts of the declaration. At the conclusion of the testimony the court of its own motion required thé plaintiff to elect upon which count! he would proceed, holding in effect that he could not recover the statutory penalty and also for the value of the lumber. To this ruling the plaintiff objected and excepted, but elected to proceed under the first or statutory count. A verdict was returned in plaintiff’s favor upon this count for two thousand three hundred and forty dollars, and plaintiff prosecutes this appeal.
There are numerous alleged errors assigned, but the only one we deem of sufficient importance to consider
“The cause of action recited in the first count is of strict right, and must be established in evidence with reasonable certainty. It is debt for a sum certain — that is, an amount capable of definiteness by calculation. The statute is severely penal, affixing to the tree an arbitrary value, without regard to its worth intrinsically or in the market. . . . The statute creates an indebtedness by reason of the tortious act. . . . The policy of the law is to protect this sort of property— not always, under the eye of the owner, peculiarly exposed to the depredations of the lawless — by making it very costly to invade it. The penalty is in the nature of punishment as well as remuneration.”
* This statute affixes to a tree an arbitrary value without regard to its intrinsic value, and this penalty partakes both of the nature of punishment as well as being a remuneration for the tortious act. The tortious act in this case consisted of the cutting, carrying away and converting to the defendant’s use of the trees of plaintiff. For this tortious act there can be but one recovery, either that under the statute or that for the actual value of the timber converted into lumber. The learned circuit judge was correct in holding that plaintiff could not recover on both counts.
Affirmed.