Opinion
February 14, 1949.
1. Trespass — trial — instructions — cutting trees according to old fence line pointed out by adjoining owner.
Where a logger purchased an adjoining tract of land and some uncertainty existed as to the dividing lines and the adjoining owner pointed out an old fence line as the correct line, instruction which told the jury that the logger would be liable in an action for cutting trees beyond the lines of a survey made after the cutting was done, was erroneous as to the actual value of the trees, because it took away from the jury the issue whether the line pointed out had been recognized so long by the adjoining owners as to have become established as the true line, and because the fence line having been pointed out by the adjoining owner, the logger could not be liable for the statutory penalty.
2. Boundaries — survey — trespass.
Testimony of surveyor who had surveyed line between adjoining property as to the manner and method of making the survey as well as the survey itself and the plat thereof admissible in an action of trespass for cutting trees.
Headnotes as approved by Roberds, J.
On Suggestion of Error In Banc. Mar. 14, 1949. (39 So.2d 263)1. License — effect of.
A license excuses the licensee for acts done within the scope of the liecense at a proper time and in a proper manner but does not justify acts exceeding the authority granted.
2. License, acts justified by.
A license until revoked constitutes justification to the licensee for all acts done within its scope, and an act which otherwise would be a trespass on real property may be justified on the ground of a license to use or enter upon such property.
3. Logs and logging — license — pointing out boundary line by an adjoining land owner and authorizing the logger to cut trees up to that line.
Where a logger has recently purchased the timber on a tract of land and not knowing the boundary line, he went to the adjoining land owner and the latter pointed out a designated line as the actual line between them and authorized the logger and his agents to cut up to the said line, this would be equivalent to a license and would excuse the logger and exempt him from all liability both for actual damages and for the statutory penalty for trees cut by him up to but not beyond the line so pointed out, and this although a recent survey disclosed that the line pointed out was not in fact the true line.
4. License — instructions — logs and logging.
Where a logger has been licensed by the land owner adjoining him to cut trees up to a line pointed out by the latter as the boundary line, an instruction which permitted recovery for trees cut beyond a subsequently surveyed line, but not beyond the line pointed out, is erroneous.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Franklin County; HUGH V. WALL, Special J.
J. Ed Franklin, C.F. Cowart, and Gordon Gordon, for appellant.
By reference to the record of the testimony of the surveyor, Ed McCall, when introduced by appellee on the case in chief, it will be seen that the appellant strenuously objected to his testimony and moved to exclude it because it in no sense conformed to the statutory requirements of a survey.
Chapter 15, beginning with Section 4268 through Section 4286 of the Code of 1942, lays down the requirements of a survey. Section 4268 makes the county surveyor a public officer. Section 4269 makes it his duty when called upon to make a survey. Section 4271 makes it his duty when making a survey to make a certificate of his survey to be recorded, and Section 4273 is as follows: "#4273. To Swear the Chain-Bearers. — The surveyors shall administer an oath or affirmation to the chain-carriers faithfully and diligently to perform their duties without fear, favor, affection or partiality; and he shall write the name of each of the chain-carriers on his plat, or on the certificate of survey, and he is authorized to administer all oaths which may be necessary in the prosecution or completion of any survey." See Pope v. Ivy, et al., 117 Miss. 501, 78 So. 367; Burton v. Butler, 107 Miss. 344, 65 So. 459.
In Buckwalter Lumber Co. v. Wright, et ux., 159 Miss. 470, 132 So. 443, speaking to the point, the court said: "As the case must go back for a new trial, we direct attention to the insufficient proof of a correct survey by the county surveyor. It may be that without his survey there was enough testimony to go to the jury, but when a surveyor is called upon to establish a land line between coterminous owners, the surveyor should begin at an established government corner, called for by the field notes and find the evidences or some of them sufficient to show that it was a correct corner, and he should then re-establish the line and should find that at the other end of the line is a recognized government corner, or one reestablished by another surveyor, or one that is so well established and recognized by all persons in the community that there can be no doubt of its correctness. The original survey, whether correctly made or not, is the true boundary between sections, and the surveyor must locate the original lines as run by the original surveyor. In case he misses the recognized corner, he should not divide the difference between the owners, because this does not re-establish the true boundary line. It may have the effect of giving each landowner the number of acres to which he is entitled, but it does not necessarily do so and it does not establish the true line. He should readjust his instruments, take his bearing from the true corner, and continue his survey until he correctly traces the boundary between the two land owners."
Measured by the law, let us view the testimony of this witness, McCall, and see if what he did rises to the dignity and respectability of a survey.
In testifying at the instance of appellee's counsel, he said he used the description in the deed from Baker to Thompson. When read into the record that deed shows the land this witness attempted to survey contained 46.92 acres, less three acres in the SE corner, leaving 43.92 acres. And according to the testimony the sixteen acres had been sold to the schools and to Butler. This sixteen acres nowhere is attempted to be described. This witness testified: "Q. Did you go back to check if it was the NW corner of 29? A. No, I did not. Q. Did you check that point out any? A. No, sir, it was not necessary, according to my way of seeing it. The land was described as starting at this point."
It is perfectly obvious that the witness, McCall, did not start from any government corner, nor did he attempt to locate such a corner. He did not give the acreage as required by law. If he had done so, he would have shown that he had run around 46.92 acres instead of appellee's land which was only 30.15 acres. Again this witness testified: "Q. Did you swear your chain-bearers? A. They were not sworn in." He made no certificate as required by law. In fact, it is difficult to see where he complied with the requirements of law in any respect.
The Thompsons owned the land on both sides of the line in confusion, which constituted one contiguous body, certainly since 1917. It then remained in the Thomson family until 1944 when Charles E. Thompson and his brother conveyed 30.45 acres of what was known as the "Tom Baker Place" to L.A. Chapman, which 30.45 acres was purchased by the appellee in 1946, but there described as 30.15 acres. An old line fence row for more than thirty years had been considered the line between what was known as the Baker place and the Thompson place.
As revealed by the record, Mr. Curtis Thomas, the husband of appellee, knew about his fence row and testified that he just knew his wife's line as the Tom Baker Place and that it was fenced, and in response to a question of appellant's counsel if the fence was not between him and Thompson, answered: "A road between him and Thompson and an old fence row."
The witness, Harvey Saucier, who had lived on this Tom Baker place in question six years, testified that there was an iron peg at the corner dividing the Tom Baker place and the Thompson and Whitehead and Cameron property, and that there was an old fence row and a red oak tree, and that Mr. Curtis Thomas, husband of appellee pointed out this old fence row to them as the line between appellee's property and the Thompson property, the timber on which belonged to appellant, and told him at that time that he had two trees over the line. This witness was not permitted to testify that the old fence row was considered the line between this property when he lived there, but he did testify in response to this question of appellant's counsel: "Q. Did Mr. Thomas tell you whose timber was on the other side of the old fence row? A. The Thompson property."
The witness, L.A. Chapman, who it will be recalled once owned appellee's land, purchased it from two of the Thompson heirs and sold it to Bass who sold it to appellee, testified that he was familiar with the location of the Tom Baker and the Thompson places, testified that he was familiar with the location of the Tom Baker and the Thompson places, testified that he didn't establish a line "I used the old fence row as the line."
The witness, Robert Ford, who it will be recalled was one of the persons who cut the timber, testified that he was familiar with appellee's land and the Thompson place where Mr. Sansing owned the timber, and that the line between the Thompson place and the Thomas place was evidenced by an old fence row, and further testified that Mr. Curtis Thomas, husband of appellee, pointed out this old fence row as the line between the two properties. He further testified that he did not cut any timber over the old fence row, that it was an old run down fence, a lot of wire on the trees, and that had been nailed to old logs, also that he had seen the old fence row since that date.
The witness, Philip Shell, testified that he knew the Thompson place and the Thomas place, and that he was employed by appellant to cut and haul timber from the Thompson place. That he heard the husband of appellee tell Mr. Saucier that he was putting new blazes on the place and not to cut across the new blazes. This was ruled out. He testified that there was an old fence row there and testified that the blazes were: "A. Right along on the fence line." Again: "A. He told him to cut up to the new blazes line and he would be satisfied." This witness further testified: "Q. You testified you heard heard Mr. Thomas tell Mr. Saucier to cut up to the blazed line? A. That is right. Q. Mr. Sansing (meaning appellant) told him it was blazed? A. He showed it to him."
From all of this testimony it is inescapable that for many, many years there was a fence row understood to be the dividing line between the Baker place and the Thompson place.
Where, we ask, is it shown by any of this testimony that the appellant, Sansing, did anything wilful or malicious, or was reckless to the point of wilfulness in connection with the cutting of this timber. We cite Seward, et al. v. West, 168 Miss. 376, 150 So. 364; Hays v. Lyon, 119 Miss. 858, 7 So.2d 523; Anderson-Tully Co., et al. v. Campbell, et al, 103 Miss. 790, 10 So.2d 445.
The instruction told the jury that the appellee was the owner of all the land attempted to be surveyed by the witness, McCall. This witness testified that he surveyed all the lands that P.C. Thompson acquired from T.W. Baker, which was 46.92 acres, less three acres in the southeast corner deeded to A.D. Butler, leaving 43.92. Whereas, the appellee purchased 30.15 acres only, as shown by her deed and she further testified that there was sixteen acres of the Tom Baker place that was acquired by Thompson from Baker sold to public schools and to Butler, as heretofore pointed out. She, therefore, could not be the owner of all the Tom Baker place and this she perfectly well knew according to her own testimony. We submit that this instruction declaring her to be the owner of all the Tom Baker place acquired by Thompson and peremptorily charging the jury to find for the appellee the value of all the timber cut from this land is erroneous.
Instruction tells the jury that: "The agent or employees for the defendant acting within the scope of their employment, cut and removed the trees . . . . and if they further believe from a preponderance of the evidence in this case that the cutting was done wilfully, intentionally, carelessly and without defendant taking due and proper precautions to prevent a trespass upon plaintiff's land by his agents or employees, then it is the sworn duty of the jury to find for the plaintiff in the amount of $15 for each oak, pine and gum tree."
In Seward, et al v. West, 168 Miss. 376, 150 So. 200, above referred to the Court in condemnation of similar instructions, said: "The court, in more than one instruction granted at the request of plaintiff, charged the jury that they should find against the defendants on the issue of the statutory penalty if the jury believed that Kelly `did not use due care and caution to ascertain the lines', or cut the timber `without the exercise of proper care and caution to prevent a trespass'. It is true that these expressions were used in a more or less close connection with the words `intentionally' and `wilfully', but the language always is so phrased that the jury could well have interpreted the instructions as authorizing the conclusion of wilfulness if proper or due care was not exercised, and the jury may well have thought under the language of these instructions that due care and caution would require an actual survey, or in any event that due care and caution required Kelly to do more than he did."
In Richardson, et al v. Flowers, 11 So.2d 808, the exact situation existed as existed in the case at bar, and the trees were cut by the employees of Flowers. Flowers, having pled that he had no part in the trespass and therefore was not chargeable with it, the court said: "We hold under the authority of Planters' Package Co. v. Parsons, 153 Miss. 9, 120 So. 200, that Flowers is not liable for the statutory penalty for the trespass of his servants committed without his knowledge or consent. In other words, their trespass was not his trespass, unless it was either expressly authorized or was caused by his negligence."
We submit that these instructions make the trespass, if in fact such, of appellant's servants, his trespass, even though committed by his servants without his knowledge or consent. On this identical situation the court held that Flowers was not guilty of the admitted trespass and the statutory penalty could not be imposed against him.
James A. Torrey, Luther A. Whittington, for appellee.
At the conclusion of appellee's brief there is an adequate synopsis of the brief and the synopsis is here reproduced in full: —
Plaintiff's evidence established a perfect, valid and legal title to all the land, 43.92 acres, embraced in the metes and bounds description in the deed from Thomas Baker to P.C. Thompson. Any contention that she only acquired 30.15 acres in the deed of conveyance to her is wholly without merit and wholly untenable.
The undisputed evidence shows that the division line between the lands of Mary Thompson, on which the defendant was cutting timber, and the lands of plaintiff, being the Tom Baker lands, was south 35.35 chains from the old Havard Ferry Road to a point where it cornered on Section 39. This is the line involved in this controversy. There is no dispute that the plaintiff warned the defendant not to cut over this specific line, as shown by the notice given by attorney to the defendant. It is undisputed that this boundary line was unmarked and unknown until the survey was made.
It was admitted by the defendant, both in his pleadings and evidence, that he cut 230 large trees on the lands of plaintiff and a number of smaller trees, and the court did not err in peremptorily instructing the jury to find for the plaintiff for the actual value of the timber so admittedly cut.
The only excuse offered by the defendant to justify the cutting of plaintiff's timber was that the husband of the plaintiff pointed out to two of the employees an old fence line as the division line between the Baker land and Mrs. Mary Thompson's land on which the defendant was cutting timber. The witness, Curtis Thomas, husband of the plaintiff, denied that he pointed out any such line, unequivocally, and denied that he knew where the Thompson-Baker land cornered on the old Havard Ferry Road, or where the line ran south from that road and the undisputed evidence is that that line was not marked and could not be identified without survey.
The survey of plaintiff's property and the location of the dividing line between plaintiff's property and Mrs. Mary Thompson and the adjoining land was made by a competent engineer, after notice to Mrs. Thompson. Her representative was there. It was a mutual survey, made by owners of the land. It was not necessary to give the defendant in this case notice. He had no intereset in the land, merely a contract to cut timber on the land. The argument that the evidence of the surveyor was incompetent and his survey was illegal is therefore untenable.
The preponderance of the evidence showed that all of the merchantable timber on plaintiff's land was cut by employees of the defendant, without regard to any old fence line whatsoever. Only two of the employees who cut the timber were offered as witnesses. The undisputed evidence of the plaintiff was that they cut all over her land.
The only excuse offered by the defendant for cutting plaintiff's timber was that they cut to an old fence line. Since the undisputed evidence showed that they cut without regard to this line, all over plaintiff's land, this excuse fails and the defendant stands without justification for the wrongful cutting of the timber.
The jury having found contrary to the claim of the defendant that they only cut to an old fence line, without regard to the dividing line between Mrs. Thompson and Mrs. Thomas, it follows that there is no defense to the wrongful cutting of the timber, no justification or excuse therefor; from which it follows that the verdict of the court below should be by this court sustained. The verdict of the jury awarding damages for the actual value and statutory penalty for 230 trees is supported and established by the preponderance of the evidence. The verdict of the jury therefore should not be disturbed.
The evidence indisputably shows that the old indicated fence line was not the division line between the plaintiff's land and the Mary Thompson land. The evidence indisputably shows that the defendant took no steps whatsoever to ascertain from Mrs. Mary Thompson the boundary line of her land adjoining Mrs. Thomas' land. The evidence indisputably shows that the plaintiff gave written notice that this boundary line ran south from a corner on the old Havard Ferry Road 35.35 chains to a corner on the section line of Section 39, while the evidence with reference to an old indicated fence line showed that on the boundary line between Mrs. Thompson and Mrs. Thomas, it only ran a distance south of approximately 19 or 20 chains and even then was not on the actual line.
For all these reasons, the judgment rendered by the lower court should be by this court affirmed.
Mrs. Thomas sued Sansing in the circuit court for $1600, alleged to be the actual value of 409 trees claimed by Mrs. Thomas to have been cut and removed by Sansing from some thirty-eight acres of land owned by her, and for the further sum of $6,135 statutory penalty for such cutting and removal, a total of $7,735.00. The jury found that Sansing had cut and removed from the land of Mrs. Thomas 230 trees of the actual value of $300, to which it added statutory penalty in the sum of $3,450, making a total verdict of $3,750. Judgment was entered accordingly, for which verdict and judgment Sansing appeals.
He assigns a number of grounds for reversal. We have concluded the case must be reversed because of the granting to plaintiff of the hereinafter quoted instruction. When that is done the assigned errors involving procedural matters will disappear and the other assigned errors may not arise on a new trial, or if they do arise, they will likely do so under evidence and circumstances different from those disclosed by the present record; therefore, except as to the competency of McCall as a witness, we pass upon no assigned error other than the granting of said instruction.
The instructions was given under those circumstances: Sansing had purchased timber from the lands of a Mrs. Thompson adjoining and lying immediately west of the land of Mrs. Thomas. Uncertainty existed as to the actual location of the north and south line between the Thompson and Thomas lands and also as to the south boundary of the Thomas land. Sansing, by notice under the general issue, asserted that he, through his agent, inquired of Curtis Thomas, the husband of the appellee and her admitted agent, the location of these lines, and that Mr. Thomas informed Sansing's manager and cutters that the line between the Thompson and Thomas properties and the south line of the Thomas land ran along and was in accordance with an old fence, or the evidence thereof where the fence had been destroyed or removed, and that Thomas blazed some trees in spaces where the fence did not then exist, which blazed trees were supposedly in line with the existing parts of the fence, or evidence of prior existence thereof, north and south of such blazes; that Thomas informed the cutters that they could cut to this old fence and blazed line. Proof on behalf of appellant supported that plea. One witness said no trees were cut across this pointed-out line. Another said only two were cut east of that line, although evidence on behalf of appellee showed many more were cut over that line.
Some seven months after the timber was cut appellee caused a survey to be made in an effort to ascertain the true boundaries of her property. The surveyor testified to the correctness of his survey according to the metes and bounds description in the chain of title of appellee, and exhibited a plat of the survey. The old fence line was not straight. In some places it was west and in others east of the surveyed line. However, it is shown that many more trees were cut from the Thomas land acording to that survey than were cut therefrom according to the old fence, blazed line. In that situation the court granted to plaintiff this instruction:
"The Court instructs the Jury for the plaintiff, Maggie Thomas, that she is the owner under the facts in this case and the jury should so find, of all the land within the survey shown by the evidence in this case lying West of the Thompson Lands and lying West of the line running south from the road 35.55 chains between the Thompson land and the land of plaintiff, and that she is entitled under the facts and law in this case to recover the actual value of the timber and trees shown by the preponderance of the evidence to have been cut from said lands of the plaintiff, and the court instructs the jury to return a verdict for such actual value as they may believe is shown by a preponderance of the evidence of all timber and trees cut and removed or destroyed from the lands of the plaintiff by the defendant, his agents and employees."
There are two fatal objections to that instruction. The first is that it tells the jury Mrs. Thomas owns the land in the survey "lying west" of the Thompson land. She owned no land west of the Thompson land. The Thomas land was east of the Thompson land. This may be an error but nothing is said by either on that question. If it is an error, steps should have been taken to correct it. We cannot say whether it is an error or not. But if it be assumed that the word "west" should have been "east", the instruction yet works a reversal. (Hn 1) It took away from the jury the right to find, if the evidence justified the finding, that the fence line had been recognized and considered the line by the adjoining property owners for sufficient time and under such conditions as to become the established line between the adjoining owners. It will be noted this instruction applies only to actual value of the trees. But it will also be noted the court told the jury that Mrs Thomas, as a fact, owned all of the land within the boundaries of the survey. In another instruction granted plaintiff, the jury was told that if it found, under the conditions set out in the instruction, that Sansing "did go upon plaintiff's land" and cut and remove trees therefrom, it should assess against Sansing the statutory penalty of $15.00 for each oak, pine and gum tree so cut and removed from such land. In other words, these two instructions, taken together, told the jury (1) Mrs. Thomas owned all land within the calls of the survey, and (2) Sansing was liable for the statutory penalty for each oak, pine and gum tree cut from that land (if the other specified conditions existed), although such trees might have been located west of the fence line. Certainly if Mrs. Thomas informed Sansing the fence was the line and he could cut all trees west of that line Sansing would not have been liable for the statutory penalty for doing that even though some of the trees had been located east of the surveyed line and actually on the land of Mrs. Thomas according to the later survey.
(Hn 2) We will only add, as a guide in another trial, that the testimony of McCall as to the manner and method of making his survey, as well as the survey itself and the plat thereof, constitute proper evidence to go to the jury.
Reversed and remanded.
ON SUGGESTION OF ERROR.
The Suggestion of Error, herein filed, is directed principally to that portion of our original opinion wherein we say, with reference to the instruction therein set out and held to be erroneous, "It took away from the jury the right to find, if the evidence justified the finding, that the fence line had been recognized and considered the line by the adjoining property owners for sufficient time and under such conditions as to become the established line between the adjoining owners." [38 So.2d 707]
The suit was for trespass and sought the recovery of the actual value and the statutory penalty for trees cut by appellant on the lands of appellee. For more convenient reference, we again set out the instruction which, in the original opinion herein, we held to be erroneous and requiring a reversal of the case. It is as follows:
"The Court instructs the Jury for the plaintiff, Maggie Thomas, that she is the owner under the facts in this case and the jury should so find, of all the land within the survey shown by the evidence in this case lying West of the Thompson Lands and lying West of the line running south from the road 35.55 chains between the Thompson land and the land of plaintiff, and that she is entitled under the facts and law in this case to recover the actual value of the timber and trees shown by the preponderance of the evidenve to have been cut from said lands of the plaintiff, and the court instructs the jury to return a verdict for such actual value as they may believe is shown by a preponderance of the evidence of all timber and trees cut and removed or destroyed from the lands of the plaintiff by the defendant, his agents and employees."
As we pointed out in our former opinion, Curtis Thomas, the husband of the appellee and her admitted agent, informed Sansing's manager and cutters that the line of his wife's property ran along and was in accordance with an old fence, or the evidence thereof, where the fence had been destroyed or removed, and that Thomas blazed some trees in spaces where the fence did not then exist, and that Thomas informed the cutters that they could cut to this old fence and blazed line. Many of the trees, complained of, were cut west of this fence line, but east of the boundary line as run by the surveyor, some seven months later, which trees were within the survey and shown by it to be on the lands of appellee, but outside of the boundary of the lands, if the old fence and blazed line were the true boundary. In the latter event, the trees would be on the lands of Thompson and not on the lands of appellee.
If the jury should find, and they had the right to so find from the evidence in this record, that Thomas did point out the old fence line, as claimed, and did authorize appellant and his agents to cut up to that line, then this would constitute a license to appellant and his agents to so cut up to said line, and would justify and excuse the appellant and exempt him from all liability for both actual damages and the statutory penalty for all acts done within the scope of the license, and for all trees cut before reaching the fence line, and this would be true even though the surveyed line were the true line and the trees cut between it and the old fence line were in truth and in fact on the lands of appellee.
(Hn 1) The rule is appropriately stated in 53 C.J.S., Licenses § 84b, p. 811, as follows:
"A license excuses the licensee from liability to the licensor for acts done within the scope of the license, at a proper time and in a proper manner; but it does not justify acts exceeding the authority granted. (Hn 2) Until revoked, a license constitutes protection to the licensee as against the licensor, even though the act licensed is illegal. It justifies or excuses him, and exempts him from liability to the licensor for all acts done within the scope of the license prior to its revocation, including all acts which are necessarily incidental to the full enjoyment of the license. . . ."
American Jurisprudence, Vol. 33, p. 413, Sec. 109, announces this same rule as follows:
"An act which would otherwise be a trespass on real property may be justified on the ground of a license to use or enter upon such property, if at the time of such act the license is still unrevoked. Trespass will not, for example, lie where one goes on the land of another to remove buildings he has erected there or other movable property under a parol license from the owner, unless he has lost the right of removal."
This has been the rule in this State for almost one hundred years. In New Orleans, Jackson Great Northern Ry. Company v. Moye, 39 Miss. 374, decided in 1860, one Alexander sued the New Orleans, Jackson and Great Northern Railroad Company for damages occasioned by a trespass upon his premises by construction of their railroad across the same. The deposition of Reuben Davis was offered in evidence by the railroad company. He testified he was the agent of the company in procuring the right of way, and that a conversation with Alexander in reference to the right of way over his lot in which Alexander said: "I will not claim damages, and you need not have a jury assembled to assess the damages, but can go on with the completion of the road." No consideration was offered or paid for the right of way over Alexander's land. There was an objection to the introduction of the deposition "because the agreement testified to was not in writing." The Court held it was not necessary that the agreement be in writing; that it was a license or permission; did not depend on any consideration to support it; and constituted a defense to an action of trespass for doing that which the plaintiff had licensed and permitted to be done; and that it was error for the lower court to have excluded it.
In Hicks v. Mississippi Lumber Company, 95 Miss. 353, 48 So. 624, this Court held that a verbal license to enter upon land and cut such timber as may be needed for clearing a right of way is a complete defense to an action for the statutory penalty for the cutting of the trees, and is also a complete defense to a suit for the value of the trees cut.
Getting back now to the instruction under consideration, it will be observed that it peremptorily told the jury that they should return a verdict for appellee for the actual value of the timber and trees cut from the lands of the plaintiff, east of the surveyed line, even though they might have been cut west of the line pointed out by Thomas. This is not the law. (Hn 3) Appellant's license, if such were found by the jury to exist, would be a defense to any action for trespass by the cutting of trees between the newly surveyed line and the fence, and if the jury believed from the evidence that Thomas had pointed out the line and said that appellant and his agents could cut up to it, as alleged and proven by witnesses for the defendant, then this would be a defense and there could be no recovery of either the actual value or the statutory penalty for the trees cut between the two said lines. (Hn 4) The instruction, in its present form, excludes from the jury the consideration of the license, if any, granted by Thomas to appellant and, without authority of law, deprives appellant of the consideration by the jury of this meritorious defense to all claims for either actual value or statutory penalty on account of trees that may have been cut between said lines. The Suggestion of Error will therefore be overruled.
Suggestion of error overruled.