Rowan v. Carleton

56 So. 329 | Miss. | 1911

Smith, J.,

delivered the opinion of the court.

On the 17th day of April, 1902, appellant by deed granted to appellee “the right for a period of four years from this date to cut and remove all merchantable timber ’ ’ on certain land. Within the life of this contract a considerable portion of the timber was cut down by appellee and cut into sawlogs. Appellee also built a tramroad through the land for the purpose of removing-logs therefrom. These sawlogs were removed from the place where they were cut, and stacked near this tram-road, ou appellant’s land, preparatory to shipment, and there remained until after the expiration of four years from the date of the contract. Certain other logs, cut from land other than that of appellant, were intermingled by appellee with the logs cut from appellant’s land. These logs were not marked in any way that would enable appellant to distinguish them from the logs cut from liis own land. After the expiration of the time limit provided in the contract, appellant claimed the logs cut from his land and not removed therefrom, and instituted this action of replevin in the court below to recover the possession of same. The writ was by the sheriff levied upon all of the logs found on appellant’s land. Prom a judgment in appellee’s favor, this appeal is taken.

The court fatally erred in instructing the jury that the burden of identifying the particular logs cut from his land was upon the appellant. Evans v. Morgan, 69 Miss. 329, 12 South. 370; Ouilette v. Davis, 69 Miss. 762, 12 South. 27. Appellee having intermingled these logs with logs cut from other lands, in such manner that it became impossible for appellant to identify them, she must bear the loss and inconvenience resulting therefrom. Should she desire to retain the logs cut from land other than that of appellant, it devolves upon her to furnish the proof necessary to separate them from those cut from appellant’s land.

Appellee contends, however, that the granting of this instruction is harmless error, for the reason that saw-logs are manufactured articles, within the rule applied in Butler v. McPherson Bros., 95 Miss. 635, 49 South. 257. In this appellee is mistaken, for sawlogs are not manufactured articles within this rule, as will appear from an examination of Clark v. Ingram-Day Lumber Company, 90 Miss. 479, 43 South. 813, and Butler v. McPherson Bros., supra. They are simply felled trees cut into appropriate lengths for manufacture. The fact that the logs were moved from the place where they were cut to another portion of the land, and there stacked preparatory to shipment, is immaterial. Strong v. Eddy, 40 Vt. 549; Gamble v. Gates, 92 Mich. 510, 52 N. W. 941. Reversed and remanded.