
    (49 South. 475.)
    No. 17,258.
    McGEE v. LOUISIANA LUMBER CO., Limited (LOUISIANA CENTRAL LUMBER CO. et al., Warrantors).
    (Feb. 1, 1909.
    On Rehearing, May 10, 1909.)
    1. Deeds (§ 87*) — Record—Effect.
    An act duly recorded, evidencing the sale of land, cannot be interfered with by pleading unrecorded deeds and acts of dates subsequent.
    [Ed. Note. — For other cases, see Deeds, Dec. Dig. § 87.*]
    2. Notice Not to Cut Trees.
    The notice given by plaintiff not to cut down trees on the land was not so conclusive as to make the case one of extreme trespass of a criminal nature.
    3. No Estoppel.
    The estoppel pleaded by defendants was not of such a nature as to defeat plaintiff’s title.
    4. Amount oe Damages.
    The defendants owe the value of the property taken.
    5. Punitive Damages.
    Not a case for punitive damages.
    On Rehearing.
    6. Evidence (§ 586*) — Weight.
    As between the positive testimony of witnesses who have arrived at the quantity of timber cut and removed from a tract of land by actual measurement of the stumps and tops of the trees, and of the distance between, due allowance being made for the “jumping” of the trees in falling, and witnesses who merely guess at the amount, or undertake to estimate it, from memory, long after the fact, the positive testimony should control, and, particularly, as against a trespasser, who was warned, in advance, and who, nevertheless, kept no record of the quantity of timber cut and removed by him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*]
    Breaux, C. J., dissenting in part.
    (Syllabus by the Court.)
    Appeal from Sixth Judicial District Court, Parish of Ouachita; James Pemberton Madison, Judge.
    Action by Joshua D. McGee against the Louisiana Lumber Company, Limited. Defendant called its vendor, the Louisiana Central Lumber Company, in warranty, and that company in turn called its vendor, the Louisiana Midland Company, Limited. From a judgment for plaintiff, both plaintiff and defendant appeal.
    Judgment amended by increasing the award in plaintiff’s favor, and in all other respects affirmed.
    ' John Merritt Munholland, for appellant McGee. Lamkin, Millsaps & Dawkins, for appellant Louisiana Lumber Co. Stubbs, Russell & Theus, for appellees.
   BREAUX, C. J.

Plaintiff complains of trespass committed on his land, to wit: N. y2 of N. E. % of section 9 and W. % of N. W. % of section 10, township 10, range 1 E., by cutting down trees and taking them away.

He claims $27,726.36 as damages for the loss of the trees taken by defendant, and $1,000 as punitive damages, with legal interest.

Plaintiff and defendant claim title respectively from a common author, to wit, B. F. Boyett, whose title is not questioned by any of the parties.

The Louisiana Lumber Company bought the land in question from the Louisiana Central Company on the 27th day of May, 1905.

The Xjouisiana Central Company, defendant’s vendor, bought it from the Louisiana Midland Company on the 20th day of May, 1905.

Defendants claim that this last company bought the land from B. F. Boyett.

Of this later.

The defendant alleges, in substance, that the Castor Company, of which plaintiff was a partner, had at one time owned this land, and that in consequence the plaintiff is es-topped from asserting an adverse claim to its title, as his company sold the land he afterward bought.

Plaintiff’s chain of title begins with the sale by Boyett to him (plaintiff) on the 4th day of January, 1901.

Before the sale to plaintiff, Boyett, the original vendor, sold the timber on the land to H. P. Rochelle.

The deed was never recorded.

Rochelle sold the timber thereon to the partnership of Whittaker & Whittaker. The deed of the latter was recorded.

The deed the defendants held related to the trees only, and there was a time stipulated in nearly all of the deeds within which to cut down and haul away the trees.

The Castor Lumber Company, for instance, in which plaintiff had an interest, sold the timber to Carlisle & Co. The time limit for removal was to 1902.

Plaintiff charged that in the years 1905 and 1906 the Louisiana Lumber Company knowingly trespassed and removed from the land 1,875 trees, aggregating a total of 1,848,-424 feet of lumber, worth $27,726.36, which as plaintiff alleged, the defendant appropriated.

The defendant called its vendors in warranty, and these vendors called theirs to the end of the last vendors.

The defendants and warrantors, among other grounds, pleaded equitable estoppel on the ground that plaintiff had represented them and could acquire no interest against them because of his agency to them.

This is not a case in which the facts can very well be separated from the law: that is, a complete statement of facts made to be followed by a discussion of the law points to any extent.

There are a number of facts bearing upon the issues. Those that are directly pertinent will be hereafter referred to and quoted.

Title:

Plaintiff had from the first a complete title to the land. His deed was timely recorded. He went into possession and sought to exercise the fights of an owner. While he-did not occupy the land himself, his vendor became his locum tenens. After he left the place, he appointed some one who lived near to have an eye on the place.

Defendants:

There is a missing link in defendant’s chain of title to the timber.

Owing to the negligence of the purchaser from Boyett, the deed was not recorded.

While on the subject of registry, it may as well be stated here that it does not appear that the Rochelle deed to the Southern Grocer Company was ever recorded.

There is a deed recorded on the 1st of September, 1899, in which this last-named company appears as the vendor to the Castor Company for the price of $125. The deed contains the following:

“This sale and transfer is made with the understanding that said timber is to be cut and removed within the time limit given by H. P. Rochelle on the nineteenth day of June, 1899, same being time limit given H. P. Rochelle by Benjamin Boyett.”

The foregoing extract and other evidence/ on the subject lead to the inference that the sale, beginning with the sale from Boyett to Rochelle, different from the sale from Boyett to the defendant, included only the trees, which the buyer, according to the terms and conditions of the sale, “must remove within a stated period.”

True, the transfer of Whittaker & Whit-taker to the Southern Grocer Company contains no reference to a time limit, but the title of the Southern Grocer Company, vendees of the Whittakers, to the Castor Company, does contain tne following, to wit:

“This sale and transfer is made with tlie understanding that said timber is to be cut and removed within the time limit given us by H. P. Rochelle on the nineteenth day of June, 1899, same being time limit given H. P. Rochelle by Benjamin Boye'tt.”

Again, in the year 1899, the Whittakers, in a letter in evidence • offering to sell their right to the timber stated:

“The same to be gotten out as fast as practical.”

The Castor Lumber Company in 1899, being at that time the holder of the timber, and wishing to retain its right to remove the trees, for a consideration paid Boyett obtained from him further time for the “privilege of extension of time for cutting, hauling and removing timber.”

The timber limit for removing the trees is also set forth in a deed of mortgage and subsequently in a deed of sale of the property mortgaged.

The right to cut trees was not exercised at all.

The lost right, transferred to defendant by mesne convey'ance, is the extent of defendant's claim. It cannot be of any avail against plaintiff’s recorded deed, dating back many years.

This is, if anything, a stronger case for plaintiff than was the case for defendant in the St. Louis-Thibodeaux Case, 120 La. 834, 45 South. 742.

The cited decision precluded defendant from recovering the trees here.

Notice:

The plaintiff through his counsel in the year 1905, about the time the defendants began to cut trees on the land, gave notice to defendants to desist; referred defendants to the record where they would find that they had no right to the timber.

The defendants’ answer was direct. They refused to stop cutting and claimed the land as their own.

This notice of plaintiff and the refusal of defendants was urged by the former as ground for claiming large damages and punitive damages.

Estoppel:

This plea is thoroughly argued on the part of the defense. Plaintiff was one of the partners of the company known as the “Castor Company.” Plaintiff in the interest of this and another company, known as the “Car-lisle Company,” each connected in some way or another with defendants’ chain of title, while in their employ located for them timber lands on the ground.

We take it, as is sometimes done by pro-motors, some of the lands were bought in his name which he subsequently transferred to the owners. The tract in this controversy was not transferred.

There is nothing in the testimony to show that defendants have claim to it. They presented a deed to plaintiff for his signature.

He refused to sign. In answer he said:

. “Do you take me for a fool, or what do you think I am, that I would give one hundred sixty acres of the best pine land in the parish to the Louis Werner Sawmill Company after they treated me like they did?”

The name of Werner is another connected with one of the different companies that have been mentioned in this case as concerned in the 160-acre tract.

The defendants did not insist, did not ask for specific performance, and did not seem to have that right.

As to the agency of plaintiff: It did not preclude him from buying land on h±s own account. The amount paid for the land was small, only $100. He may well have bought it for his own account.

At any rate, the testimony before us does not justify us in holding that he is not the owner. He was not estopped.

Now as relates to the Louisiana Midland Company: The plaintiff acquired and owned stock in the concern. He became its agent to buy timber lands. The company was organized after the date of the sale from Boyett to him.

In one of the deeds of the company, this land was included. Plaintiff was not a party to the deed of transfer and does not appear to have consented to the transfer in any way.

It seems that the land was assessed in the name of the company and taxes were paid thereon by the company.

That in itself does not have the effect of conveying title. Plaintiff testified that he considered it in the light of a favor for his many services to the company that it should pay these taxes.

This is not as satisfactory as it should have been. At the same time it does not afford ground sufficient to hold plaintiff bound by estoppel. It is not equivalent of a title or in the nature of a title. It does not appear anywhere in the evidence. that he acknowledged with any degree of positiveness that this land was owned by defendants or any of defendants’ officers.

Trespass:

We have not found this an aggravated ease of trespass, although it was trespass. The notice given by plaintiff to defendant to stop trespassing was not as convincing as he seems to think. The fact stated in regard to the title is not absolutely sustained by the record, although this notice was given.

In referring, for instance, to the Whittaker deed, it mentioned that it contained a time clause to remove the timber. This deed did not contain such a clause unless by inference growing out of the fact that subsequent to the deed and in another contract the time limit is referred to as dating from the first deed; that is, the Boyett deed of sale.

Again, when the notices were received, defendants’ attorney was consulted. His advice was that they had a right to the timber; that the title to it rested in them. This advice, we are informed, was not lightly given. Other attorneys entertained the same opinion at the time.

It is only since the decision in the before-cited case that the question is considered settled.

There was no wantonness in defendants’ trespass. We think it was at most an ordinary trespass.

Damages:

As defendants were not knowing and willful trespassers, we have no hesitation in coming to the conclusion that the damages should not be fixed in accordance with the rule laid down in the Guaranty Company v. Drew Investment Company, 107 La. 251, 31 South. 736, and Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230. In these eases the trespass was wanton and willful.

The plaintiff is entitled to the value of the timber; nothing over its value.

The learned judge of the district court fixed the number of trees at 1,500. We think fairly enough. The price, $2 each tree, has every appearance of being the value, aggregating 83,000.

Considering the limited number of acres, the small amount that the land sold for at a date not so very remote, and considering the fact that the trees had before the trespass to some extent been culled, we do not think that we should change the amount.

The law and the evidence being for plaintiff, the judgment is affirmed; costs of appeal to be paid by appellees. Newman v. Baer, 50 La. Ann. 323, 23 South. 279.

On Rehearing.

MONROE, J.

A rehearing was granted because the court entertained some doubt as to whether the plaintiff had been allowed as much as he is entitled to, and our conclusion, upon a further examination of the case, is that the amount awarded him should be increased. There are two witnesses, plaintiff and Guyton, who testify that they, with the assistance of several other men, spent nearly a week in measuring the stumps and tops (and the distances between) of the trees which had been cut by defendant, and plaintiff produces in court the original memorandum book in which the number of trees and the measurements were taken down, together with a tabulated statement, calculated (as he says) according to the Doyle rule, showing the amount of lumber contained in the trees.

It does not appear that any timber had been cut on the land for several years before, or that there was any difficulty whatever in identifying and measuring from the stumps and the tops, the trees which had. been cut by defendant, within a few months, save as to 80 trees, the stumps of which were measured, but the tops were missing, having been, as it is supposed, removed by defendant for the purposes of its tramroad. Plaintiff and Guyton testify, positively, that they measured only the trees that had been cut by defendant, and, apart from the means of identification which have been mentioned, it appears that Guyton lives quite near the scene of action, that it was he who, on plaintiff’s behalf, warned defendant’s representative, in the beginning, not to cut the trees, that, during the cutting he supplied the men engaged in that work with pork and other supplies, and was on the ground nearly every day, so that he had a pretty fair knowledge, to start with, of the timber that was included in the cutting. The tabulated statement, showing the amount of lumber in each tree, based upon the measurements, contained in the memoranda, made at the time, is verified by plaintiff in his testimony, and upon the last argument defendants’ counsel were invited by the court to point out any errors, to the prejudice of defendant, that they might discover. As no such errors have been pointed out, we assume that there are none. Nor has defendant attempted to show, by counter evidence, that the method adopted by plaintiff in arriving at the quantity of lumber is not a reasonably safe and satisfactory one. Upon the other hand, defendant went upon the land in question, after written notice from plaintiff that it belonged to him, and, whilst it may have felt confidence in the advice which it had received that its title was the better, common prudence and common fairness demanded that, in cutting the timber, it should, at least, have kept some sort of a record by means of which it would, in the event of its finding itself mistaken about the title, be in a position to account to plaintiff for his property. No such record was kept, however, and defendant seeks to jueet the testimony of plaintiff and Guyton, predicated upon nearly a week of actual work, done in the woods, by the testimony of its foreman, or representative, under whose direction the cutting was done, and who undertakes to arrive at the quantity of timber for which defendant should be held te* account by means of an estimate, made, as we understand him, from memory, some 18 months after the fact; and, by the testimony of a man who was engaged in hauling the timber, not by the 1,000 feet, but by the day, and who says that he was working four teams, that there were six or seven other men hauling at the same time, some of whom had one team and others two teams, and who, virtually, admits that, in stating that the amount of timber cut was 1,200,000 feet, he is merely guessing. In fact, in answer to the first question propounded to him, on that point'(by defendants’ counsel), “Have you any idea as to the probable amount of timber cut by the Louisiana Lumber Company from this land in the fall of 1905 and the early part of 1900?” he answered : “No, sir; I did not haul it by the thousand. I worked by the day, and I never kept a scale.” And in answer to the question (propounded on cross-examination), “Isn’t it a further fact that you have paid no particular attention to the amount of timber that was cut on this tract of land, but just guessed at it?” he answered, “Yes, sir.” We therefore conclude that there is no sufficient reason why the evidence adduced on behalf of plaintiff should not be accepted as establishing the number of trees appropriated by defendant and their contents in board measure. As to the stumpage value, our re-examination of the testimony does not lead us to think that our original estimate (of $2 per 1,000 feet) should be increased.

It is therefore ordered, adjudged, and decreed that our former decree be set aside, and that the judgment appealed from be now amended by increasing the award in favor of the plaintiff from $3,000 to $3,768, and by increasing the award in favor of defendant and against the Louisiana Central Lumber Company, and in favor of the company last named and against the Louisiana Midland Mill Company, in the same proportion.

It is further decreed that, in all other respects, said judgment be affirmed, the defendant to pay the costs of the appeal, with right of recovery as against, ■ and between, the warrantee and warrantors, as on the main demand.

See dissenting opinion of BREAUX, C. J., 49 South. 479.  