16 S.E.2d 149 | Ga. Ct. App. | 1941
Lead Opinion
1. The controlling question in this case is whether the evidence demanded a finding that the person who cut the crossties from the plaintiff's land and sold them to the defendant was a wilful trespasser within the meaning of Code, § 105-2013, which fixes the measure of damages in such a case; and since the evidence did demand such a finding, the verdict for the plaintiff, based on the theory that the trespass was innocent, denied the recovery of the greater damages allowable in cases where the trespass is wilful, and the judgment overruling the plaintiff's motion for new trial was error.
2. The remaining special assignments of error are without merit.
The Court of Civil Appeals of Texas, in Liles v. Thompson, held, as edited in 85 S.W.2d 784, that "Lessees of mineral interest drilling oil well after notice of adverse claim and of suit to recover land held not `innocent trespassers' entitled to reimbursement for cost of well at expense of adverse claimant." We quote from page 787: "In the present case the lessees drilled with notice of the adverse claim of Thompson and over his strenuous objection. He vainly endeavored to prevent the granting of a permit by the Railroad Commission for the drilling of the well. It is true he did not prevail in the suit upon the title which he originally asserted. In this respect there is a difference between this case and the case above cited. But it seems to us a serious impeachment of the good faith of the lessees when they persisted in developing the land for oil over the vigorous protest of an adverse claimant who was then *662 suing; of which adverse claim and suit such lessees had full notice. It would seem in such a case the lessees should be held to have expended their money at their own risk and can not be justly considered as innocent trespassers. As stated by Judge Leddy, a court of equity possessed ample authority to take such action as might be necessary and proper for their protection. The lessees did not see fit to resort to the courts for their protection, but elected to drill over the protest of the adverse claimant. Under the circumstances they are not to be regarded as innocent trespassers so as to entitle them to reimbursement for the cost of the well at the expense of the adverse claimant who vainly sought to prevent them from incurring such expense."
It will be observed that the courts above cited dealt with the expressions "wilful" activity, not "innocent" activity, "bad faith" activity, as being synonymous in the sense in which we are now discussing them. It seems our courts have dealt with them to the same effect. In Tietjen v. Dobson,
So if we can with confidence and correctness move from the proposition that "wilful" and "bad faith" have the same meaning and effect in so far as "wilful" is used in the Code, § 105-2013, now under consideration, and we have no hesitancy in the conviction that we can do so, then we can with equally as much confidence and assurance pass on to a correct conclusion of the question before us, with our own Supreme Court to guide us. For the Supreme Court of this State in a number of cases involving a very similar question, if not indeed in effect an identical one, has spoken in no uncertain terms when it had under consideration the question of "bad faith" conduct under the provisions of the Code, § 33-107, with reference to erection of permanent improvements in good faith as follows: "In all actions for the recovery of land, the defendant who has bona fide possession of such land under adverse claim of title may set off the value of all permanent improvements bona fide placed thereon by himself or other bona fide claimants under whom he claims; and in case the legal title to the land is found to be in the plaintiff, if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits." See Farlinger v. Edwardy,
Therefore we feel, in view of the authorities cited and from what has been said, that the admitted trespass against the true owner, Zugar, in cutting the trees while the suit was pending and before final determination made the trespass "wilful" and not in good faith, under the statute in question, and that the case should be reversed.
Judgment reversed. MacIntyre, J., concurs.
Dissenting Opinion
On April 5, 1939, Max Zugar brought an action against the Tennessee, Alabama and Georgia Railway Company in Walker superior court to recover $5500 for the alleged conversion by defendant of 5000 cross-ties which, "during the years 1937 and 1938, . . defendant received . . and bought from Dan Scarbrough, Martin Scarbrough and Sam Cannon," and which "had been cut and taken from . . lands belonging to . . petitioner by said parties without his knowledge and consent and without any right in law . . so to do." The defendant denied that Scarbrough or his associates were wilful trespassers, and further pleaded that while, during the years 1937 and 1938, it paid Scarbrough $2437.55 for 4251 cross-ties placed on its railroad, it had no way of knowing where they were cut and purchased them in good faith, believing that the payee, Scarbrough, had title to and the right to sell them; that the land in question was sold in June, 1934, at public outcry to satisfy tax executions *665 against Max Zugar and his wife, Sarah, and was bought in by T. M. Quillian, to whom the sheriff of the county executed a deed; that Quillian conveyed the property by quitclaim deed to T. P. Scarbrough; that T. P. Scarbrough died, "and thereafter M. L. Scarbrough and his associates [who had acquired the title] entered upon said lands and cut and removed cross-ties therefrom;" that thereafter Max and Sarah Zugar "brought a proceeding in Walker superior court to set aside said tax sale . . as invalid, and said proceeding is now pending" in said court; that defendant is advised and believes that Scarbrough and his associates at the time they cut said timber were acting in good faith, believing that they had a valid title to said lands, and were not acting wilfully or in bad faith in cutting and removing said cross-ties; that the cost of sawing the timber into cross-ties and their delivery to defendant was 47 cents per tie, and the value of said ties was increased by said labor and delivery in the amount of 47 cents a tie, leaving the value of the timber at the time it was severed from the realty at 10 1/4 cents per cross-tie. A verdict in favor of the plaintiff for $610.41 principal and $127.35 interest was returned. The plaintiff's motion for a new trial was denied, and that judgment is assigned as error.
Counsel for the plaintiff make the following statement in their brief: "We think there is only one question for determination, and that is as to whether or not the evidence demanding a finding that, after April 6, 1937, the date the Scarbroughs were served in the proceeding of Zugar against them, they were intentional or wilful trespassers." The facts of the case as outlined in the pleadings were established by the evidence, and the only question before this court is whether under those facts there was any evidence authorizing the jury to find that the Scarbroughs and their associates were not wilful trespassers within the meaning of the Code, § 105-2013. That section is in part as follows: "Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit, without deduction for his labor or expense. 2. Where defendant is an unintentional or innocent trespasser . . the value at the time of conversion, less the value he or his vendor added to the property." The sole contention of the plaintiff in error is that the evidence demanded a *666
finding that the Scarbroughs were wilful trespassers, within the meaning of the above-quoted Code section, for the reason that after they had been served in a suit to enjoin them from cutting timber on the land in question (the suit being brought by Zugar and his wife and in which Zugar claimed title to the land under a warranty deed, subject to a security deed made by him to his wife), they continued to cut timber on the land. In that suit Zugar also asked the court to cancel the tax deed to the land made by the sheriff to Quillian and the deed made by Quillian to Scarbrough. As to that suit, the record shows the following facts: The court granted a temporary injunction against the defendants, but soon thereafter dissolved the injunction. Upon the trial of the case, the court directed a verdict for the defendants, and that judgment was reversed by the Supreme Court (Zugar v. Scarbrough,
However, it is admitted by the defendant that the decision of the Supreme Court adjudicated that the title to the land in question was in the plaintiffs, and that the Scarbroughs were trespassers. But that decision did not adjudicate that they were "wilful trespassers." Did the evidence in the instant case demand a finding that they were such trespassers? In Yahoola RiverMining Co. v. Irby,
But the plaintiff in error contends that the above-cited cases are not controlling in the instant case because here the trespassers were notified by the suit brought against them by Zugar that he claimed title to the land, and therefore, as a matter of law, they were wilful trespassers. I can not agree with this contention. In the Irby case, supra, Dr. VanDyke, agent for the defendant, bought certain lands and cut $40 worth of timber thereon. The plaintiff claimed title to the lands and alleged that VanDyke's title was defective. A witness for the plaintiff testified that he had told VanDyke, before he bought the land, that he thought the title he was buying was bad. The judge charged the jury if VanDyke, although the agent of the defendant when the trespass was committed, had bona fide bought the land and believed it was his, the jury should not find more than the actual damages proved. The jury returned a verdict in favor of the plaintiff for $100, and the Supreme Court held: "The jury, in their damages are confined to the proof. It appears very plainly here that there was a bona fide belief in Dr. VanDyke that the land belonged to him, and no greater verdict ought to have been given than will cover the injury [$40] shown by the proof to have been given. Judgment reversed." In Ingram v.Smith,
In the instant case the evidence amply authorized a finding that the trespassers had a bona fide belief that they had a good and valid title to the land in question, and that they had reasonably good grounds for so believing. Their predecessor in title had bought it at a public sale, and the sheriff had deeded it to such predecessor, and the question as to whether their title was good was not decided until the decision of the Supreme Court, and in that decision the court specifically stated that they did not decide that the title was void, but that, because of certain irregularities in connection *668
with the public sale, Zugar's right to redeem the property had not expired, and therefore the title had not become vested in the Scarbroughs or their predecessor in title. There is no contention that the trespassers cut any timber subsequently to the decision of the Supreme Court. The court properly submitted to the jury the question as to whether the trespassers had a bona fide belief that they had a good title to the land; and the finding of the jury (as evidenced by the amount of their verdict) that they had such a belief was authorized by the evidence. The case ofFarlinger v. Edwardy,
The special grounds of the motion for new trial, as stated in the brief of counsel for the plaintiff in error, are all based on the contention that the trespassers, after they had been served with the injunction proceeding brought against them by Zugar, could not, as a matter of law, be innocent trespassers. In my view these grounds are without merit, and the court did not err in denying a new trial.