Rector v. Outzen

46 So. 408, 93 Miss. 254

• Court: Mississippi Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

This was an action for the recovery of the statutory penalty for cutting trees. The jury had the facts and found for the defendants. In order to secure a reversal it must be shown that there was error and that the error was prejudicial. The only matter, we think,‘requiring any attention from us, is the suggestion that by the scope of the instructions for the defendants it appeared that the burden of proof was on the plaintiff throughout to show first the cutting on plaintiff’s land, and then to show also that it was done wilfully or with culpable negligence in not ascertaining the boundaries of the owner’s property. It will be noted that the second instruction, asked by the plaintiff and given, distinctly states that “the burden of proof is upon the defendants, Outzen and others, to show that the trees were cut by mistake and with the observance of reasonable care upon their part to prevent a trespass.” The instructions for the defendants cannot properly be said to be in conflict with this. The opinion in Therrell v. Ellis, 83 Miss. 494, 35 South. 826, is not subject to criticism in view of the record in that case. There; it must be observed, as here, all the evidence was in on both sides, both the evidence of the cutting and the evidence in excuse of it. That being the condition of things, it was of course, tire office of the plaintiff, assuming the affirmative, to show by a preponderance of the whole evidence that the cutting was done without the proper precaution. No instruction for the defendants in the case before us goes beyond that boundary.

Affirmed.