Therrell v. Ellis, 83 Miss. 494

Therrell v. Ellis

83 Miss. 494 | Miss. | 1903

Truly, J.,

delivered the opinion of the court.

This was a suit brought by appellant seeking to recover the statutory penalty for trees charged to have been cut by the agent and employes of appellee on certain lands of appellant. There was no count in the declaration for the value of the trees; only the statutory penalty was sued for. Therefore, to entitle plaintiff to recover in the court below, it devolved on him to prove, first, that the trees were cut on land belonging to him, without his consent and within twelve months of the institution of the suit; second, that the cutting was done by defendant, or by his agent and employes, and, if by them, that 'their acts were within the scope of their authority, or were committed by the command or Avith the consent of their principal; third, that such cutting was done willfully, intentionally, and knoAvingly, or recklessly, carelessly, and without taking due and proper precaution to prevent the commission of a trespass. *498Mhoon v. Greenfield, 52 Miss., 438; Keirn v. Warfield, 60 Miss., 808. Assuming that appellant’s ownership of the land was duly proven, though no deed thereto was in fact introduced, and he admitted that he was never in actual possession (R. R. Co. v. Buford, 73 Miss., 508, 19 South., 584) ; assuming, further, that the cutting was without his consent, though that ca.n only be inferred from the fact that he filed his suit; and assuming again that the trees were cut within twelve months of the filing of the suit, though there is an absence of positive proof on this point in the record — it was still incumbent on him to prove the other facts on which Ms right of recovery depended. There was no competent evidence showing that Farlow was the agent of appellee, and nothing tending to prove tliat he was authorized by appellee to cut any timber on any land. It is elementary law that agency cannot be proven by the acts or declarations of the alleged agent. Newman v. Taylor, 69 Miss., 670, 13 South., 831; R. R. Co. v. Cocke, 64 Miss., 713, 2 South., 495; Kinnare v. Gregory, 55 Miss., 622; Gilchrist v. Pearson, 70 Miss., 351, 12 South., 333. “An agent’s authority cannot be proved by his acts done without the knowledge or authority of his principal.” Whiting v. Lake, 91 Pa., 349. Appellee was not shown to have instructed, consented to, or known of the cutting of the trees by Farlow. Again, appellant failed to show any carelessness, or recklessness in the cutting of the trees, or any lack of reasonable precaution in endeavoring to ascertain the boundaries of appellee’s land. Therefore, even conceding the agency and authority of Farlow, appellee would only be liable for the actual value of the timber cut. Keirn v. Warfield, supra. Farlow, the alleged agent under whose direction the trees were cut, and the employes who did the cutting, were introduced as witnesses for appellant, and their testimony shows, conclusively that every reasonable precaution was taken to prevent the commission of a trespass; that Farlow was familiar with the location of what were generally recognized as the established boundaries of ap-pellee’s land; and Farlow denied' absolutely and emphatically *499that be cut any trees on land belonging to appellant. In tbe face of this proof, tbe statutory penalty was not recoverable, and, as there was no count for value, it follows tbat tbe peremptory instruction for appellee was properly granted.

Affirmed.