J. W. Hendrix filed a suit against H. B. Curtis, 'in which he sought to recover damages for the alleged cutting of 5,000 board feet measure of timber, and an injunction against further trespassing on his land. It was alleged that the properties of the plaintiff and the defendant adjoined, that the boundary line between their properties is a straight north and south line, and that the defendant knowingly cut timber on the plaintiff’s property to the approximate depth of 500 feet. The defendant in his answer admitted that he was in possession of the land lot referred to, and that the boundary line was a straight line; admitted the cutting of approximately 3,000 feet board measure of pine and oak timber, and averred that in such cutting he acted in good faith, honestly believing that he was the owner of the timber; that the fair market value of the timber on the stump was *20S33, which amount he had tendered to the plaintiff and had deposited in the registry of the court for the benefit of the plaintiff if he would accept the same. On the trial of the case before the court and a jury, a verdict was returned in favor of the plaintiff, fixing the amount of damages at $160. The defendant’s motion for new trial as amended being overruled, he brings the case here by bill of exceptions. Held:
Submitted July 13, 1953
Decided September 14, 1953.
W. L. Nix, Guy D. McKinney, for plaintiff in error.
Sam P. Burtz, A. J. Henderson, contra.
1. Under the pleadings and the evidence, the court did not err in charging the jury that, if they found from the evidence that the defendant wilfully cut the timber on the plaintiff’s land, the measure of damages would be the manufactured value of the timber cut. Nor did the court err in refusing to charge the jury the defendant’s request, which in effect was a directed verdict in favor of the defendant on the issue as to whether he was a wilful trespasser.
2. The verdict of the jury on the contested issues of fact is supported by the evidence, and it was not error to deny the amended motion for new trial.
Judgment affirmed.
All the Justices concur, except Atkinson, PJ., not participating.