Roell v. Shields

Trespass. Owner may recover either statutory penalty or value of trees out, hut not both. .Under section 4977, Code of 1906 (Hemingway’s Code, section 3246), the owner can only recover either the statutory penalty or the value of the trees cut, but not both.

Appeal from circuit court of Rankin county. Hon. A. J. McLauein, Judge. Action by Flora Willie Shields against F. M. Roell and others. Judgment for plaintiff, and defendants appeal. On the — day of July, 1920, this court rendered its opinion in the case of Ladner v. Ingram-Day Immher Company et al.,,85 So. 196, wherein it was held directly that the plaintiff in a suit such as the one here in question, would have to elect to rely either on the intrinsic value, or the statutory penalty for trees cut on his lands. The attorney for appellant apologizes to the court for having overlooked this rule, as laid down in the case of Mhoon v. Greenfield, 52 Miss. 434, but begs leave now to refer to same as an additional authority, and as a supporting case to the more recent opinion in Ladner v. Ingram-Day Ijamher Company, supra. The appellant respectfully calls the court’s attention to the fact that in the case at bar, the plaintiff in the loAver court filed his declaration containing two counts; first count asked for the actual value of the trees alleged to have been cut, and second count for the statutory penalty. The evidence adduced in behalf of the appellee at the trial of this cause shows that the actual value of the trees claimed to have been cut was about one hundred and two dollars, the evidence for appellant, that they were worth much less. The court in its instructions told the jury that they might assess the statutory penalty in addition to the actual value of the trees cut. The jury evidently responded to this instruction for a verdict was returned in court for something- over two hundred dollars. The verdict does not indicate what part of the amount named is to apply as actual value, or what part as statutory penalty. The appellant submits for this reason this case should be reversed and remanded, that a jury may pass upon the facts, guided by proper instructions. Can the owner recover both the penalty and actual value of timber cut by trespasser? The court requests briefs on this point and refers to the case of Ladnier v. Ingram-Day Lumber Company, 85 So. 196. Three sections of the Code of 1906 bear directly on this point. Section 4977 (Hemingway, sec. 3246) ; section 4986 (Hemingway, sec. 3255); section 4989 (Hemingway, sec. 3258). The two sections last mentioned seem to have escaped the attention of the court in the case of Ladnier v. Ingram-Day -Lumber Company, supra, due no doubt to the failure of counsel to propertly present them to the court. Section 4977 fixes the penalty. Section 4986 expressly refers to it as a penalty. Section 4989 expressly provides that the recovery of the penalty shall not prevent a recovery for any further damages, referring to damages which are recoverable by law, without reference to the statutory penalty. These three sections, taken together, show that plaintiff was entitled to recover not only the statutory penalty of fifteen dollars per tree but in addition the actual value of the trees. Section 4986 shows that the fifteen dollars per tree provided in section 4977 is considered a penalty. Section 4989 says that the recovery of the penalty of fifteen dollars per tree, shall not preclude plaintiff from recovering “further damages;” that is, the actual value of the trees taken. . This seems to he the only logical construction that can be placed upon these three sections taken together. The statute was designed to enlarge and not restrict the rights of the timber owner. The statute ivas enacted so as to make it hard upon the trespasser. Without the statutory penalty, the trespasser could take the timber of another and be liable only for the actual value of the timber. The timber owner can sue for less than the statutory penalty only because that is so provided by statute. In the Laclmer case, supra, the court seems to have overlooked the case of Miller v. Wesson, 5'8 Miss. 888, in which Mr. Justice Campbell, speaking for the court said: “The statute prescribes the penalty to be recovered by the owner of the trees and it has been held several times that he may unite with his demand for the penalty, one for the value of the trees.” And Gilchrist-Fordney Company v. Parker, 109 Miss. 452, in which the court by Chief Justice Smith said appellee is entitled to recover in one suit both his actual damages and the penalty of one hundred and fifty dollars prescribed by section 4988 of the Code.. R. R. Gompan-y v. Spencer, 72 Miss. 491. In the case of Mhoon v-. Greenfield the question here involved was not before the court. The amount involved in this suit is not large and is not of very great consequence to appellee, but the decision, in this case will establish a precedent of far reaching effect in the protection of the timber owners of the state, and for this reason the case should have the closest scrutiny. Counsel for appellant is mistaken in saying that the plaintiff filed a declaration with two counts; there is but one count in the declaration and that is in the form required by the statute and asks for the actual value of the timber and also for the statutory penalty of fifteen dollars per tree. But in any event, this case should not be reversed for two reasons: First, it is reasonably certain that the jury disregarded the actual value and assessed tlie penalty at fifteen dollars per tree as the amount of the verdict. Three hundred and seventy-five dollars is a multiple" of fifteen dollars. Second, if this court should hold that the actual value and statutory penalty are not both recoverable, then the court can deduct one hundred and two dollars, the value proven by plaintiff, from three hundred and seventy-five dollars, the amount of the verdict and enter judgment for appellee for the balance two hundred and seventy-three dollars, .appellee hereby expressly consenting thereto.