MULLINS LUMBER CO. v. WILLIAMSON & BROWN LAND & LUMBER CO., 246 F. 232

WOODS, Circuit Judge. In this action for damages for cutting timber the plaintiff, Williamson & Brown Land & Lumber Company, alleged and claimed $5,000 actual and punitive damages. The verdict was in favor of the plaintiff for $1,256. The defendant raises in this court for the first time the point that the court was without jurisdiction, because the evidence of the plaintiff showed that the value of the timber cut and used by the defendant did not amount to $3,000.

It is true that the actual damages according to the testimony most favorable to the plaintiff were above $2,385; and the court instructed the jury that there was no such evidence of willfulness and wantonness as would support a verdict for punitive damages. But all this is not conclusive of a failure of jurisdiction.

The rule is that the plaintiff’s claim with respect to the value of the property taken or the amount of damages inflicted through the defendant’s wrongful act measures for jurisdictional purposes the value of the matter in controversy, even though the complaint shows that a perfect defense might be made to sufficient amount of the claim to reduce it below the jurisdictional amount, unless it appears as a matter of law from inspection of the complaint that it is not possible for the plaintiff to recover the jurisdictional amount, or from the evidence at the trial that the value of the property involved or the damages claimed had been magnified fraudulently in the declaration so as to reach the jurisdictional amount.

Smithers v. Smith, 204 U. S. 632, 27 Sup. Ct. 297, 51 L. Ed. 656. While the evidence in this case fell short of establishing the amount of damages claimed, an inspection of the complaint does not show that recovery of the amount claimed was not possible, nor does it appear from the evidence that actual and punitive damages to the amount of $5,000 was not claimed in good faith.

It would be a great hardship on the plaintiff for an appellate court to. hold that, in order to reach the jurisdictional amount, he had fraudulently raised his claim, when the question had not been made in the District Court and he had had no opportunity to meet the charge on the trial. For an appellate court to' take such action the fraud should affirmatively appear from the testimony beyond doubt. It follows thdt the cause cannot b'e dismissed on jurisdictional grounds.

The cutting and appropriation by the defendant of timber from the land described in the complaint not being denied, the real issue, at the trial was whether the plaintiff had a title derived from Wilson Lewis, the common source, covering the land in dispute, superior to the defendant’s junior title. The last link in the plaintiff’s chain of title was a deed of October 28, 1907, from Cape Fear Dumber Company to the plaintiff, which was invalid because not attested by witnesses.

On September 9, 1910, the grantor executed and attached to the original deed an instrument under its seal, by which it recited the defect in the original deed and undertook to re-execute it in these words: “In consideration of the premises, Gape Fear Lumber Company bas caused tbis indenture to be re-executed this day and year above written.*’ It seems too clear for discussion that this was a valid execution of the original document, in form a conveyance giving it effect at the date of the last execution. 13 Cyc. 553.

The defendant’s junior title covered the land in dispute, and an important question of fact was whether this description in the deed from Wilson Lewis to S. W. Morrison, under which plaintiff claimed, embraced the land in dispute: “All that certain tract of land situated on Little Pee'Dee river in county and state aforesaid containing one thousand (1,000) acres, more or less. Bounded as follows: North on lands lately conveyed to A. O.

Lewis & Wilson Elliott; east by a line running from the corner of Wilson Elliott's land across Cedar creels to mouth of Sand Hill branch and up said branch to where it emptied into Black creels and thence down said creels to Little Pee Dee river— said line dividing said tract from lands of the said Wilson Lewis; south on lands of Lewis Garald and west on Little Pee Dee river. The same being land deeded to me by Daniel Lewis S. H. D. and dated 15th day of April, 1867. “For further description see plat made by H. T.

Morrison, surveyor.” The surveyors who testified differed as to the true lines in the plat attached to the deed and in the location of the land conveyed by it. On this description the plaintiff claimed to the run of Blade creek. The defendant, on the other hand, in the effort to show that “down said creek to Little Pee Dee river” meant the edge of Black Creek swamp and not the run of the creek, asked the witness Dillon Elliott the question: “In that neighborhood what is the custom in speaking of Black creek? Do they refer to the run of Black creek or to the edge of the swamp?” The question was excluded.

When a creek or other stream is called for as a boundary, the presumption is that the middle of the run, and not the bank o-r the swamp of the stream, is intended. The presumption, however, is not conclusive. It may be overcome by other expressions of the deed or external facts, such as other natural boundaries and even artificial marks in the survey accompanying the conveyance showing a different intention, or by certain and immemorial usage contrary to the presumption. In Felder v. Bonnett, 2 McMul. (S. C.) 44, 37 Am.

Dec. 545, Judge O’Neall thus states the court’s view of the point: “The only difficulty which could arise would be, whether the surveyor called lor file swamp or the creek, or the creek itself, by tlie name of Dean sv.ainp. If there were any artificial marks, which would lead us to conclude that the surveyor stopped at the margin of the swamp, then we would he at liberty to adopt it as the boundary; but, in their absence, what is meant by Dean swam;), must be decided by the known and established understanding in this stnti'.

The moaning may be ascertained, by appealing to the usage even of Orangeburgli, in this behalf. Besides Dean swamp, they have many others, such as liull swamp, and Coccaw swamp. This name is appropriated to the run, and not to the swamp. In largo streams, such as the Santee and Kdisto, the swamp is spoken of as distinct from the river, but in creeks with a margin of swamp, the usage is universal in this state, to speak of the creek and swamp as one.” St. Paul, etc., R. R. Co. v. Schuemeler, 7 Wall. (74 U. S.) 272, 19 L. Ed. 74,; Hanlon v. Hobson, 24 Colo. 284, 51 Pac. 433, 42 L. R. A. 502, note page 504.

It is true that the evidence of common usage of the locality must be plain and clear to give a meaning to a word or expression different from its usual signification; and it is also true that even such clear and plain proof will not avail unless the local meaning is proved to have been known to the grantee or to have been so generally recognized that the grantee’s knowledge of it may be inferred. Wigmore on Evidence, p. 3489.

The defendant’s beginning of proof on the subject would be evidence of the usage itself, to be followed with proof that the usage was within the knowledge, actual or presumed, of the grantee. We think, therefore, there was error in excluding testimony that the general local meaning given to Black creek was the edge of the swamp and not the center o f the stream.

The charge on the subject of adverse possession is so clearly right that the assignments of error on that subject -require no discussion.' Before Wilson Lewis conveyed to Morrison, under whom plaintiff claims, he had in 1867 conveyed all his land on the east side of Black creek to his son, Allen Lewis, under whom defendant claims. The deed of 1867 to Allen Lewis was not recorded, and there was no evidence that Morrison, the subsequent grantee, knew it embraced all Üie lands oil the east side of Black creek.

It, therefore, seems obvious that the District Judge was right in charging the jury that Morrison, Wilson Lewis’ subsequent grantee, was not bound by the deed to Allen Lewis, and was not charged with notice that he had already embraced in the deed to Allen Lewis all his land on the east side of Black creek. Other assignments of error are not argued in the brief, and are without merit. Reversed.