D. H. MCMILLAN AND W. C. JACKSON, PARTNERS AS D. H. MCMULLAN & CO., APPELLANTS,
v.
WILLIAM R. FRARY, APPELLEE
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The Florida Supreme Court reversed a lower court's decree awarding damages for timber trespass, remanding the case for further proceedings. The court found the case legally similar to a prior decision and noted that while the appellants admitted trespass, they continued the activity after filing their answer.
The court held that the decree was not appropriate in its current form and reversed it. The court indicated that while damages were warranted due to continued trespass, the case should be remanded for further proceedings consistent with equity principles.
“The bill alleged that the appellants bad been and were boxing and scraping certain rine timber of the appellee, and removing the terpentine therefrom and damaging the property, and prayed for an injunction and accounting and a decree for the damages.”
Describes the initial allegations made by the appellee in the bill of complaint.
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Join FLexlaw to unlock all legal intelligenceAppellants were accused of boxing and scraping timber and removing turpentine from appellee's property, causing damage. They admitted to the trespass …
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Per Curiam.
This is an appeal from a decree in favor of appellee, rendered in the Circuit Court of Lake county, on April 7th, 1899, against appellants. The bill, answer, proceedings and decree, are substantially similar to those in the case of the same appellants against Z. K. Wiley, appellee, decided at this term. The bill alleged that the appellants bad been and were boxing and scraping certain rine timber of the appellee, and removing the terpentine therefrom and damaging the property, and prayed for an injunction and accounting and a decree for the damages. An answer, admitting the trespass was filed, alleging that it was done by mistake, and alleging willingness to pay the damages. Evidence was taken showing that the appellants were trespassing after the filing of the answer, and a decree was rendered for the damages, and an appeal was taken from the decree. The principles of law announced in McMillan & Co. v. Wiley, decided at this term, and cases therein cited, are applicable to and fully decisive of this case. It is, therefore, ordered, adjudged and decreed that the decree appealed from be and same is hereby reversed, and this cause is remanded for such further proceedings as may be consistent with equity principles. An order would be made dismissing the bill, if it did not appear from the testimony that after the answer was filed the appellants were still trespassing on the lands of the appellee.
The appellee will pay the costs of this appeal.
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Micou v. McDonald, 55 Fla. 776 (Fla. 1908)…h its equity be not questioned by the pleadings or expressly presented. Freeman v. Timanus, 12 Fla. 393; Trustees I. I. F. of Florida v. Gleason, 39 Fla. 771, 23 South. Rep. 539; McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993; McMillan v. Frary, 45 Fla. 486, 33 South. Rep. 995; City of Jacksonville v. Massey Business College, 47 Fla. 339, 36 South. Rep. 432; Williams v. Peeples, 48 Fla. 316, 37 South. Rep. 572; Florida Packing & Ice Co. v. Carney, 49 Fla. 293, 38 South. Rep. 602. It follows from what…