* Corpus Juris-Cyc References: Boundaries, 9CJ, p. 292, n. 26, 33. Louis Cohn Bros., plaintiffs in the court below, appellants here, filed a declaration in the circuit court of Lawrence county, containing two counts — one, demanding the statutory penalty for defendant's cutting trees on plaintiffs' land; the other count demanding the actual value of the trees cut by defendant on plaintiffs' land.
The proof showed that the trees were cut on a strip of land, the ownership of which was in dispute as to which of two lines of surveys established the correct northern boundary line of plaintiffs' land; there being one line contended for by the plaintiffs eighty-five yards north of the line contended for by the defendant, Simpson, who admitted that he cut the trees, but claimed that he had not cut them from plaintiffs' land.
As is usually the case, the surveyors for plaintiffs and defendant differed, according to the contention of plaintiffs and defendant, as to where the true line was, and it appears that none of the surveys were made in compliance with a court order; and the surveys for the plaintiffs seemed to have been entirelyex parte. One surveyor made a pocket survey for plaintiffs, and there were no sworn chain bearers. The jury found for the defendant. This was a close case on the facts, and the one error complained of, which we shall mention, is the instruction No. 2, given for the defendant, which is as follows:
"The court instructs the jury that under the law no legal survey can be made without chain bearers first being duly and legally sworn to perform their duty as such chain bearers." *Page 401
We think this instruction, in effect, peremptorily directed the jury to ignore the major portion of the plaintiffs' testimony, and that the plaintiffs had a right to have the opinion of their expert surveyors as to the correct line go to the jury without restriction by the court as to the legal effect of the several surveys made. In effect the court told the jury that, if they adopted the theory of the plaintiffs' surveyors, they would stamp the seal of the jury's approval upon an illegal survey. We think this instruction was vicious, and in this case, there not having been any court order for any survey, we are unable to say just what the court did mean by the term "legal survey;" but we think the instruction was calculated to mislead the jury into the belief that plaintiffs' testimony as to the line was secured by illegal methods.
In the state of this record, we think that another trial should be had because of the giving of this instruction.
Reversed and remanded.