138 Ark. 70 | Ark. | 1919
(after stating the facts). Appellant complains of the admission of the testimony of Sweeney to the effect that he did not bny or claim the gravel bed in controversy; that he did not buy or claim any portion of ground across Booneville creek from the west where appellant cut appellee’s fence, and that he did not buy or claim or take into his possession any portion of the ground on the east side of the creek where the fence was cut; the ground of the objection being that the conveyances are the best evidence of what any vendee took by his deed. It will be observed, however, that appellant did not allege ownership of the land where the alleged trespasses were committed by reason of any deed to bim. The claim of title alleged was based upon adverse possession for a period of forty years. Appellant obtained his deed in October, 1913, and could not, therefore, of course, have had such possession as would have ripened into title. Sweeney was one of his immediate predecessors in title, and it would have been necessary for appellant to tack his possession to that of Sweeney’s to give title by adverse possession. The deeds in the chain of title from Boss were not introduced by appellant, but were introduced by appellee over appellant’s objection; and on the issue of adverse possession it was competent for Sweeney to explain the character and extent of his possession. Welch v. Welch, 132 Ark. 227, 228, 238; King v. Slater, 96 Ark. 589, 590, 593; Waldrop v. Ruddell, 96 Ark. 171, 175; Hughes Bros. v. Redus, 90 Ark. 149, 151; Jeffery v. Jeffery, 87 Ark. 496, 497, 498; Foster v. Beidler, 79 Ark. 418, 426; Seawell v. Young, 77 Ark. 309, 315, 316; Eaton v. Sims, 59 Ark. 611, 613; Richardson v. Taylor, 45 Ark. 472, 478.
There was no testimony in regard to any agreement fixing the boundary, and there was no testimony legally sufficient to support a finding that appellant had title to any land not described in his deed, and the court did not err, therefore, in so directing the jury.
Appellant calculates the compensatory damages recoverable on the first count at $8 and on the second count admits a liability of $37, if liable at all; and appellee makes no showing that the compensatory damages exceeds the sum of $45, so that appellee is entitled to have the judgment affirmed to the extent of $45 on account of compensatory damages; and it remains only to determine whether the judgment should be affirmed for the balance of the verdicts of the jury, which necessarily represent the amount assessed by way of punitive damages.
Appellant admits that he twice cut the fence, but no circumstance of force or intimidation accompanied his act on either occasion. There was no threat of violence in doing so, and there was no wilful or wanton destruction of property, and no damage was done to the freehold except to the extent of the value of the gravel taken. Appellee’s land was in possession of one Suttles, who was using it as a pasture, and he testified on behalf of appellee as follows: "I was pasturing this when this high water came; my cow was in the pasture at that time and I went down and cut the fence next to the meadow and brought the cow out that way. Mr. Parks (appellant) had fenced up his pasture and joined the fence across at the upper end, and in putting this fence back where we had it I joined onto his fence at the north end, joined the fence where I joined it before in the bend of the creek, on the creek on the west side. I went probably six or eight feet nearer the water, the fence stayed there, I don’t know, three or four days, and Mr. Parks spoke to me about the fence, said you got a little too far over. I said, 'Yes, sir;’ he said it was his, and I told him he would have to see Bryan Thomas or Mr. Roberts about it, and a day or so afterwards it was cut and thrown back. ’ ’ He further testified that "the fence was cut in two places where I joined onto him and it was cut where I went to the creek and posts pulled up and thrown back where the fence used to set.” It appears, therefore, that appellant was only attempting to restore the fence to the line where it ran before Snttles moved the fence out towards appellant’s land. Suttles restored tbe fence a few days after it had been cut down to its advanced line, and appellant again pulled it down; but no circumstances of force, threat or violence accompanied that action. Suttles testified that appellant said to him that he would have the line located by a survey, “as Bryan Thomas was coming twenty-one years old. ’ ’ This suit was brought originally by appellee’s guardian, but appellee attained his majority before it came to trial, and it proceeded to trial in his own name after an order to that effect had been made.
As bearing upon the question of good faith appellant offered to show that appellee’s brother-in-law, who was also appellee’s guardian, had stated prior to the time the fence was cut that the particular gravel here involved was on appellant’s land; but this testimony was excluded. This testimony was incompetent on the question of title, as the guardian could make no admission in derogation of his ward’s title. But the testimony should have been admitted as bearing on the question of good faith. It-affirmatively appears that there was a genuine controversy which was submitted to the jury upon the conflicting testimony of a number of witnesses in regard to the channel of the creek as affecting the boundary of the respective tracts of land. It is true that some angry words were exchanged between appellant and one Boberts, who lived on appellee’s land, after the tearing down of the fence; but this occurred after the fence had been cut down and related to a past transaction.
We, therefore, conclude that there was no testimony legally sufficient to justify the infliction of punitive damages, and the court should have eliminated this branch of the case from the jury. Brown v. Allen, 67 Ark. 386; Kelley v. McDonald, 39 Ark. 333. Where property is wrongfully taken from the owner, the measure, of damages is the market value of the property taken, in the absence of testimony showing the circumstances of the taking to be such as to warrant the infliction of punitive damages ; and there appears to be no conflict- as to the sum which will compensate the actual damage done. This is the only error, we find in the record, and the judgment will therefore be reduced to $15, and, as thus modified, affirmed.