45 Fla. 487 | Fla. | 1903
STATEMENT.
The appellee, Z. K. Wiley, filed his bill in chancery in the Circuit Court of Lake county on the twenty-fifth day of January, 1898, against D. H. McMillan and W. C. Jackson, partners doing business under the firm name and style of D, H. McMillan & Co., who are the appellees in
On the seventh day of March, 1898, the defendants filed their answer to the bill, in which they admitted that their employes had entered upon complainant’s land and boxed some of the timber thereon, but averred that the same was done through accident, and not from design to trespass thereon; that the first knowledge defendants had of the trespass upon said land was upon an investigation made after the filing of complainant’s bill; that after learning that they had boxed some of complainant’s land by mistake they ifnmediately communicated with his attorney, offering to pay the full market price then prevailing for such timber used for turpentine purposes; that they still were ready, willing and anxious to make full reparation to complainant -for said timber at the usual and well established rates, said timber having a well established market price, and that upon learning that their employes had through mistake entered upon complanant’s land they immediately ceased to box or cut any of said timber and had taken every precaution against 'fire; that, as complainant had never notified defendants or made any demand upon them for compensation for the boxing of said timber, as the trespass was unintentional
On the fourth day of April; 1898, the complainant filed his replication to the answer.
On the twenty-fifth day of May, 1898, an order was made by the chancellor below referring the cause to a special master to take the evidence therein and report same to the court.
On the tenth day of February, 1899, said special master filed his report together with the testimony taken before him by the complainant and defendants, reciting therein that all of said testimony was taken on the ninth and tenth of February, 1899.
Certain further ,tsstimony was afterwards taken in said cause on behalf of the complainant before the chancellor. Almost all of said testimony, however, so taken both before the special master and the chancellor was as to the amount of damages.
On the twenty-third day of March, 1899, a final decree was rendered in said cause in which the chancellor found the equities to be in favor of the complainant, and in which it was ordered, adjudged and decreed that the defendants pay to the complainant the sum of $607.37 as his damages, together with the costs of suit, which were taxed therein at $58.85, and that execution issue therefor as at law. From this final decree defendants have entered an appeal to this court, assigning some thirteen- errors. However, in view of the conclusion which we have reached, it becomes unnecessary to consider said several errors in detail.
(after stating the facts*)
It will be observed, as set forth in the foregoing statement, that the relief sought by the complainant in his bill was to restrain the defendants from further trespassing upon his land and that an account might be taken of the damages to the complainant from the trespasses already committed, and that the defendants be required to pay to the complainant'the amount shown to be due upon such accounting. This suit was based upon Chapter 3884 of the laws of Florida, acts of 1889, which was brought forward into the Revised Statutes as section 1469 and reads as follows:
“Against destruction of timber — Courts of chancery shall entertain suits by any person claiming to own any timbered lands in. this State, to enjoin trespasses on such lands by the cutting of trees thereon, or the removal of logs therefrom, or by boxing or scraping the said trees for the purpose of making turpentine, or by the removal of turpentine therefrom; and in such suits the said courts shall cause an account to be taken, of the damage to the complainant from any of said trespasses, before or after the institution of the suit, and decree the payment of the amounts shown to be due upon such accounting, by the defendant or defendants, and may appoint receivers of logs or timber claimed to have been cut from said lands.” The original title of this act was “An act to extend the powers of the courts of chancery in this State,” and undoubtedly it was intended to confer upon courts of chancery certain powers in addition to. those already possessed. This section has been before this court several times for construction. In the case of Reddick v. Meffert,
As there seems to be some misapprehension upon the part of some members of the bar as to the effect of the decision in the case of Brown v. Solary, 37 Fla. 102, 19 South. Rep. 161, we will state that, properly understood, there is no conflict whatever between the conclusions reached in that case and in the case of Wiggins v. Williams, supra. The case of Brown v. Solary, supra, was not
The decree must be reversed, and it is so ordered, and the cause remanded for such further proceedings as may be in consonance with equity practice and not inconsistent with this opinion, the appellee to pay the costs of this appeal.