April 1, 1915.
After reciting the foregoing statement of facts, the opinion of the Court was delivered by There are seven exceptions, but the appellant argues only four, Nos. 1, 2, 6 and 7, and consolidates 6 and 7.
The first question argued by appellant is the consolidation of 6 and 7, and raises the question, is there any evidence to sustain a verdict for punitive damages?
The question as to which of two bodies of water in a swamp is the main run is a question of fact for the jury.
There was much conflict of testimony, but it was the province of the jury to locate the main run. If the jury concluded that the western body was the main run and the defendants cut the timber beyond that run, then the defendant trespassed on the plaintiff's land and was liable for actual damages.
There was testimony that the defendants offered to buy the timber across the western run and the plaintiff refused to sell it. That the timber was cut so as to conceal operations until all the desirable timber was cut.
If the jury believed that the defendants tried to buy the timber on the disputed area and the plaintiff refused to sell, *Page 340 and that it was not included in its deed and defendants knew it, but the defendants took it anyway, they could have given damages for a wilful invasion of plaintiff's rights.
The exceptions that raise this question can not be sustained.
The first exception is as follows:
"That the presiding Judge erred in refusing to charge the jury defendant's third request to charge, such request being as follows:
`That in the said deed the boat landing mentioned as the starting point of the said boundary is described as being located at the highland of the plaintiff, the boundary line running therefrom west to the main run of little Salkehatchie. That in order to recover for an alleged trespass in crossing this boundary line it was incumbent upon the plaintiff to prove to the satisfaction of the jury the location of this boat landing at the highlands of the plaintiff, and the burden is not met by proving the location of a boat landing in Salkehatchie Swamp at or near the stream or channel and entirely away from the highlands of the plaintiff, such proof being inconsistent with the terms of the deed referred to and the allegations of the complaint.' It is respectfully submitted that such request contained a sound principle of law, was directly applicable to the issues involved, and the presiding Judge was in error in refusing to charge the same."
In response to that request to charge, Judge Rice said:
"Mr. Foreman and gentlemen of the jury, I cannot charge you that in exactly those words, because it seems to me that that contains some reference to the facts, and I am not allowed to even intimate what I think about the facts in this case. I will say this, that the reference of this deed is as to the boat landing on the highlands of Mr. Bennett, the deed says tract No. 3, `beginning at the highlands of A. Bennett at a point.' etc. Now, of course, you know as well as I do that highlands and swamp lands are not one and *Page 341 the same, and a boat landing on the highlands would not be a boat landing in the swamp, and it is hardly necessary for me to say that proof of a boat landing in the swamp is not proof of a boat landing on the highlands."
That was a substantial charge of the request. This exception can not be sustained.
That the presiding Judge was in error in refusing to charge defendant's fourth request, as follows:
"`That in considering the question as to whether or not the plaintiff has shown any right to recover of the defendants, or either of them, the jury will disregard all claims for damages for the alleged trespass on the lands of the plaintiff lying to the south of what is known as Bell's Causeway,' there being a total failure on the part of the plaintiff to introduce any competent testimony showing damages to his property on the south side of the said causeway."
There was testimony to the contrary, and his Honor could not have so charged.
This exception can not be sustained.
Judgment affirmed.