159 Ga. 363 | Ga. | 1924
A. H. Edwards, the owner of certain lands, executed a timber lease of the land to Perman Smith, wherein the owner sold and conveyed unto the lessee, his heirs and' assigns, “all the pine timber fourteen inches at the stump, and all cypress timber, all poplar timber, and sufficient gum timber to cut three cars of gum timber,” on the lands leased. By a subsequent assignment the Southern Lumber Company became the holder of this lease, with all the right and title of the original lessee thereunder in and to the timber upon the land described. The Southern Lumber Company entered upon the land in the exercise of its right and cut timber therefrom to be manufactured into lumber at a sawmill. Subsequently the owner of the land brought suit against the Southern Lumber Company, claiming that the defendant had the right, under the terms of the lease, to cut only pine and cypress timber, as specified in the lease, and in addition thereto three cars of gum timber, and that the defendant had exceeded its rights and committed a trespass by cutting and felling timber which it was not authorized to cut and fell; that it had cut some 400 gum trees over and above the three carloads to which it was limited by the terms of the lease, and had cut a large number of oak trees which were not included in the lease, and had committed other acts of trespass. The suit was for injunction and damages. On the trial of the case the jury returned a verdict for .the plaintiff for the sum of $1000. The defendant made a motion for new trial; and after hearing the same the judge rendered the following judgment: “The within motion, together with the grounds of the amendment, coming on to be heard, under proper order, and it appearing that the pleadings in the above cause did not cover the item for pine timber, and it appearing from the record that there were 79 pine trees for which damages were claimed at 50 cents per tree, it is ordered that the plaintiff write off the verdict and judgment the
The original motion for new trial in this case contains the usual general grounds. In the first ground of. the amended motion exception is taken to the ruling of the court by which a witness was permitted, over the defendant’s objection, to testify that “the price of maple lumber was from $35 to $40 per thousand feet, the price of white bay lumber from $12 to $15 per thousand feet, the price of oak timber from $30 to $60 per thousand feet.” The objection to this testimony was that there was no evidence in the case that the defendant manufactured maple, white bay, or oak into lumber from timber taken from the land of plaintiff. The court did not err in admitting this testimony. Although there may be no direct evidence in the record that the defendant manufactured maple, white bay, or oak into lumber, there is evidence that the defendant cut timber of this character' from the lands, and the jury were authorized to find from the circumstances of the case that timber of this character, felled on the lands of the plaintiff, was hauled to the sawmill of the defendant company, which was engaged in the manufacture of timber.
Exception is also taken to the following charge of the court: “Now as to the question of the price to be paid. Where one commits a wilful trespass, knowingly and wilfully (and wilful means in that regard with evil intent—the purpose to inflict damage and to take it regardless of right), then the person so damaged would be entitled to market value without regard for its improvements in putting it into marketable shape. In other words, as I understand what that means to be, where a person in this kind of’case, where a person enters upon your land wilfully and knowingly and cuts and carries away your timber and manufactures it into lumber and ships it off and gets a certain price for it, why then you would be entitled to recover that market price for it, regardless of whatever he may have done in his improving of it.” The exception to this charge is that it contains an intimation or expression of opinion of the court upon the question to which this charge relates. We do not think’so. It is urged by counsel for movant that this expression, in that part of. the charge quoted, “as I understand what that means to be, where a person in this kind of case, where a person enters upon your land wilfully and knowingly and cuts
Taking the entire charge togátlgír ^ni could not but have understood tjjatphéjr issue from a preponderance o^tbe e|idáiiejir bStljtoi:.^ ^ *“ ! & P w ¿? <*? M)o& the question as to wjfetaer thg^ $%s^yral@ í£e¡0a^b|?r to whether the ti$fb€^ had^e^^a^f^t^e^ii^o^ti^)^.
In the remaining ground of the amended motion complaint is made of that part of the charge in which the court submitted to the jury the right of the plaintiff to r for pine timber. This charge is excepted to upon th'' ' g others, that under the pleadings the plam+‘''-’ 'over damages for the cutting p" " :e charge “sought to \ not contending.” 8 now under con-the grant of a iudgment renordered and ver the item there were ■ per tree,”. ■ the full appear amount, accepts moved lirect the ler. is