This case is a controversy over timber cut from a strip of land lying between two surveys. That the “Fenner line”' was incorrect, and that 'appellee’s line should have extended beyond it to include the strip in controversy, were proved facts. There was a recovery by the plaintiff in the suit, and an appeal is prosecuted by defendants.
1. The first question raised is as to'the first instruction, in which the court instructed the jury that for the purpose of the suit the plaintiff was the owner of the timber in question. The evidence of ownership consisted of a deed from Hale & Crenshaw to Luehrmann. The complaint alleged that the plaintiff acquired the timber by purchase from Hale & Crenshaw, the owners thereof. The answer denied that Luehrmann had purchased the timber from Hale & Crenshaw. Hence when the conveyance from Hale & Crenshaw was proved there was no further controversy left as to the fact that plaintiff was the owner of the timber.
2. The next alleged error is as to the statute of limitations. There was a dispute as to whether the timber was cut in 1901 or 1900. That issue was properly sent to the jury, and its finding is conclusive.
3. Complaint is made of the exclusion of certain payrolls, which were offered as tending to prove the date the timber was cut and to prove that it was done more than three years prior to the bringing of the suit. A witness, testifying in regard to the date of the cutting, based his evidence upon the fact that the payroll showed that the cutting was done in 1900. He was permitted to show these payrolls to the jury for their inspection. Later, appellant offered the payrolls in evidence, and the court excluded them. In this the court was right. The payrolls were useful for no other purpose in this connection than to refresh the mind of the witness. - He was permitted to refresh his memory with them, and this was their utmost evidentiary value.
4. There was testimony tending to prove that the manager of appellee’s mill informed appellants that the Fenner line was the true-line before appellants cut any timber. Error is alleged to have occurred in the refusal of the court to submit to the jury that if this agent of the plaintiff pointed out a line, and informed defendants that the same' was the dividing line between the timber tracts of plaintiff and defendants, and thereby induced them to believe that the same was the dividing line, and so believing they cut timber for their own use therefrom, there could be no recovery, and the company would be bound by the agent’s action. The court was right in refusing this instruction. There was no purchase of the land or timber based upon the statements of the manager of the plaintiff. • Even if it was competent for the manager to bind his company in such matters, the facts here fall short of creating an estoppel. The utmost the facts show is a mistake as to the true line; and the situation of parties upon such á mistake as -this is stated by Chief Justice Chalmers, speaking for the Mississippi court:
“That he was mistaken as to where the line was, no more deprived him of the right to claim compensation for his trees than to claim ownership in the soil from which they were taken. Consent given to the taking, or acquiescence in the taking, of that to which one supposes that he has no title, will not prevent a recovery of the thing taken, when the true title is subsequently discovered. It will acquit the party taking from all claim for damages, direct or consequential, but it will not divest title, nor' prevent the owner from' recovering the'actual value of his property.-” Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313. See note at end of casé reviewing authorities on the subject.
Other matters presented have been considered, but no error is found.
Judgment affirmed.