Home/Court of Appeals of Texas/Kirby Lumber Corp. v. Taylor

Kirby Lumber Corp. v. Taylor

551 S.W.2d 129, 1977 Tex. App. LEXIS 2947
CourtCourt of Appeals of Texas
DecidedApril 28, 1977
DocketNo. 994
StatusPublished

This text of 551 S.W.2d 129 (Kirby Lumber Corp. v. Taylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby Lumber Corp. v. Taylor, 551 S.W.2d 129, 1977 Tex. App. LEXIS 2947 (Tex. Ct. App. 1977).

Opinion

McKAY, Justice.

This case involves a suit by plaintiff-appellant, Kirby Lumber Corporation (Kirby), against defendant-appellees, Joe Nathan Taylor (Taylor), and his wife, Lilly Mae Taylor, and the San Augustine Lumber Company (San Augustine) for conversion of timber. The suit, nominally one in trespass to try title, asserted the ownership by Kirby of pine timber cut from the Gallender and Bruce Surveys in San Augustine County by Taylor and his son Herman, such cutting allegedly occurring during the period September 1,1971, to April 4,1972, without the authority of Kirby, and sold by, Taylor to San Augustine. The legal theories on which the liabilities were asserted were trespass and conversion on the part of Taylor and conversion on the part of San Augustine. Trial was to a jury on the issues of liability for conversion and damages. The jury found in special issues 1 and 41 that the Taylors did not cut and remove [131]*131pine timber from the Gallender and Bruce Surveys and that San Augustine did not receive the same from Taylor. Judgment was rendered that Kirby take nothing as to money damages. This is the only part of the judgment that is questioned on this appeal.

Appellant brings five points of error. Points one and two complain that the court erred in entering a take nothing judgment with respect to the liability of the Taylors and San Augustine for conversion, “the evidence being undisputed that Joe Nathan Taylor cut and removed pine saw timber from the Gallender and Bruce Surveys” and “cut and removed pine saw timber from the Gallender and Bruce Surveys and sold the same to San Augustine Lumber Company.” Point three complains that the trial court erred in not giving effect to certain admissions of Taylor, which will be discussed at a later point in this opinion. Points four and five complain that the jury findings on special issues one and four were “so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.”

The land in question is located in San Augustine County, southwest of the city of San Augustine.2 The Gallender and Bruce Surveys are located near what is referred to as the Norwood Community, to the north and west from the intersection of State Highways 103 and 147. Farm Road 1992 is located in this area, running north from Highway 103 to the west of Highway 147, and then turning east, near the southeast corner of the Gallender Survey to intersect Highway 147. The surveys, depicted on the inserted map taken from Plaintiff’s Exhibit 27, are located in the area where Farm Road 1992 curves to turn east. Most of the testimony centered on Taylor’s activities near the southeast corner of the Gallender Survey, where as the testimony established, there was an old automobile body and, just to its north, a large pine tree with a red band painted around it. Most of the southern boundary of the Gallender Survey adjoins U. S. Forest Service lands in the Charity Sanders Survey, and in the Blount Survey to the west.

The evidence as to Taylor’s activities on or near the land was very vague and uncertain. John Kent and Byron Fredieu, two employees of Kirby, testified as to meetings with Taylor on or near the Gallender Survey in the spring of 1972. According to Kent, on March 28, 1972, he found, an A-frame loader near the northwest corner of the Gallender Survey, went to Taylor’s home, and inquired of Taylor about the loader. Taylor denied that the loader was his. The following day Kent found Taylor on land north of the Gallender Survey not belonging to Kirby and inquired as to whether the loader was Taylor’s. According to Kent, Taylor told Kent that this loader was his and that he had cut timber “in that area”; however, Taylor testified that Kent had asked about a black loader the first time and a maroon or purple loader the second. Kent also testified that he didn’t think any timber had been cut in the area of the loader. Fredieu testified of a meeting with Taylor in April of 1972 just north of the south line of the Gallender Survey. He indicated he was stopped by Taylor, who was sitting in his pulpwood truck, upon attempting to enter the Gallen-der Survey. At this meeting Taylor claimed the land was his and wanted to know, among other things, why the Kirby employees were marking stumps on the land. Fredieu told him that the land belonged to Kirby and the stumps were being [133]*133marked to determine the extent of unauthorized cutting.

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Bluebook (online)
551 S.W.2d 129, 1977 Tex. App. LEXIS 2947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-lumber-corp-v-taylor-texapp-1977.