On April 5, 1939, Max Zugar brought an action against the Tennessee, Alabama and Georgia Railway Company in Walker superior court to recover $5500 for the alleged conversion by defendant of 5000 cross-ties which, "during the years 1937 and 1938, . . defendant received . . and bought from Dan Scarbrough, Martin Scarbrough and Sam Cannon," and which "had been cut and taken from . . lands belonging to . . petitioner by said parties without his knowledge and consent and without any right in law . . so to do." The defendant denied that Scarbrough or his associates were wilful trespassers, and further pleaded that while, during the years 1937 and 1938, it paid Scarbrough $2437.55 for 4251 cross-ties placed on its railroad, it had no way of knowing where they were cut and purchased them in good faith, believing that the payee, Scarbrough, had title to and the right to sell them; that the land in question was sold in June, 1934, at public outcry to satisfy tax executions *Page 665 against Max Zugar and his wife, Sarah, and was bought in by T. M. Quillian, to whom the sheriff of the county executed a deed; that Quillian conveyed the property by quitclaim deed to T. P. Scarbrough; that T. P. Scarbrough died, "and thereafter M. L. Scarbrough and his associates [who had acquired the title] entered upon said lands and cut and removed cross-ties therefrom;" that thereafter Max and Sarah Zugar "brought a proceeding in Walker superior court to set aside said tax sale . . as invalid, and said proceeding is now pending" in said court; that defendant is advised and believes that Scarbrough and his associates at the time they cut said timber were acting in good faith, believing that they had a valid title to said lands, and were not acting wilfully or in bad faith in cutting and removing said cross-ties; that the cost of sawing the timber into cross-ties and their delivery to defendant was 47 cents per tie, and the value of said ties was increased by said labor and delivery in the amount of 47 cents a tie, leaving the value of the timber at the time it was severed from the realty at 10 1/4 cents per cross-tie. A verdict in favor of the plaintiff for $610.41 principal and $127.35 interest was returned. The plaintiff's motion for a new trial was denied, and that judgment is assigned as error.
Counsel for the plaintiff make the following statement in their brief: "We think there is only one question for determination, and that is as to whether or not the evidence demanding a finding that, after April 6, 1937, the date the Scarbroughs were served in the proceeding of Zugar against them, they were intentional or wilful trespassers." The facts of the case as outlined in the pleadings were established by the evidence, and the only question before this court is whether under those facts there was any evidence authorizing the jury to find that the Scarbroughs and their associates were not wilful trespassers within the meaning of the Code, § 105-2013. That section is in part as follows: "Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit, without deduction for his labor or expense. 2. Where defendant is an unintentional or innocent trespasser . . the value at the time of conversion, less the value he or his vendor added to the property." The sole contention of the plaintiff in error is that the evidence demanded a *Page 666 finding that the Scarbroughs were wilful trespassers, within the meaning of the above-quoted Code section, for the reason that after they had been served in a suit to enjoin them from cutting timber on the land in question (the suit being brought by Zugar and his wife and in which Zugar claimed title to the land under a warranty deed, subject to a security deed made by him to his wife), they continued to cut timber on the land. In that suit Zugar also asked the court to cancel the tax deed to the land made by the sheriff to Quillian and the deed made by Quillian to Scarbrough. As to that suit, the record shows the following facts: The court granted a temporary injunction against the defendants, but soon thereafter dissolved the injunction. Upon the trial of the case, the court directed a verdict for the defendants, and that judgment was reversed by the Supreme Court (Zugar v. Scarbrough, 186 Ga. 310), the court holding that the direction of a verdict in favor of the defendants was error since "the evidence would have authorized, if it did not demand," a verdict for the plaintiffs.
However, it is admitted by the defendant that the decision of the Supreme Court adjudicated that the title to the land in question was in the plaintiffs, and that the Scarbroughs were trespassers. But that decision did not adjudicate that they were "wilful trespassers." Did the evidence in the instant case demand a finding that they were such trespassers? In Yahoola RiverMining Co. v. Irby, 40 Ga. 479, headnote 5 reads: "In an action of trespass for cutting timber on vacant land, when it is proved that the defendant, in good faith, believed it was his own land, the verdict, if for the plaintiff, ought to be only for the actual damages proven." In Georgia Railroad c. Co. v.Gardner, 115 Ga. 954 (42 S.E. 250), the court ruled as follows: "One who enters upon and injures another's land is not, though a trespasser, liable for punitive damages, when the acts causing the injury were done in good faith under the honest belief that the land belonged to the former [the trespasser], and there was nothing in the manner of doing such acts to indicate an intention to wantonly disregard the rights of the true owner." InStrickland v. Miller, 12 Ga. App. 671 (78 S.E. 48), the court made the following ruling: "Where crude gum is wrongfully extracted from growing trees and manufactured into spirits of turpentine and rosin, the owner may maintain trover for the manufactured products. If the taking was under an honest *Page 667 claim of right, only the value of the crude gum can be recovered; but if the taking was not in good faith, the trespasser can not set off the expense of manufacture."
But the plaintiff in error contends that the above-cited cases are not controlling in the instant case because here the trespassers were notified by the suit brought against them by Zugar that he claimed title to the land, and therefore, as a matter of law, they were wilful trespassers. I can not agree with this contention. In the Irby case, supra, Dr. VanDyke, agent for the defendant, bought certain lands and cut $40 worth of timber thereon. The plaintiff claimed title to the lands and alleged that VanDyke's title was defective. A witness for the plaintiff testified that he had told VanDyke, before he bought the land, that he thought the title he was buying was bad. The judge charged the jury if VanDyke, although the agent of the defendant when the trespass was committed, had bona fide bought the land and believed it was his, the jury should not find more than the actual damages proved. The jury returned a verdict in favor of the plaintiff for $100, and the Supreme Court held: "The jury, in their damages are confined to the proof. It appears very plainly here that there was a bona fide belief in Dr. VanDyke that the land belonged to him, and no greater verdict ought to have been given than will cover the injury [$40] shown by the proof to have been given. Judgment reversed." In Ingram v.Smith, 62 Ga. App. 335 (7 S.E.2d 922), where both the plaintiff and the defendant claimed title to the land in question, headnote 4 reads as follows: "The evidence demanded a finding in favor of the plaintiff, and the measure of damages should have been governed according to whether the jury found that the defendant was a wilful trespasser or an unintentional or innocent trespasser."
In the instant case the evidence amply authorized a finding that the trespassers had a bona fide belief that they had a good and valid title to the land in question, and that they had reasonably good grounds for so believing. Their predecessor in title had bought it at a public sale, and the sheriff had deeded it to such predecessor, and the question as to whether their title was good was not decided until the decision of the Supreme Court, and in that decision the court specifically stated that they did not decide that the title was void, but that, because of certain irregularities in connection *Page 668 with the public sale, Zugar's right to redeem the property had not expired, and therefore the title had not become vested in the Scarbroughs or their predecessor in title. There is no contention that the trespassers cut any timber subsequently to the decision of the Supreme Court. The court properly submitted to the jury the question as to whether the trespassers had a bona fide belief that they had a good title to the land; and the finding of the jury (as evidenced by the amount of their verdict) that they had such a belief was authorized by the evidence. The case ofFarlinger v. Edwardy, 138 Ga. 690 (supra), cited by the plaintiff in error, was not a suit for trespass, but an ejectment action, and was not based on the Code section relating to trespass actions. The other Georgia cases so cited are distinguished by their facts from the instant case; and the cases cited from other States, apparently in conflict with the ruling in the Georgia cases hereinbefore cited, are not controlling on this court, and in my opinion should not be followed.
The special grounds of the motion for new trial, as stated in the brief of counsel for the plaintiff in error, are all based on the contention that the trespassers, after they had been served with the injunction proceeding brought against them by Zugar, could not, as a matter of law, be innocent trespassers. In my view these grounds are without merit, and the court did not err in denying a new trial.