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 *Page 629 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 *Page 630 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 *Page 631 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.