Givens v. Kendrick , 15 Ala. 648 ( 1849 )

DARGAN, J.

In the case of Russell v. Irby, 13 Ala. 131, we held, that if one by mistake,, should go beyond his own boundary, and cut down trees, under the impression he was cutting on his own land, although he was liable for damages at common law, yet he did not incur the penalty imposed by the act of 1807. Clay’s Dig. 581. The defendant was excused from the penalty, because he did not intend to commit a trespass, but had done so without intending wrong, or injury to the rights of any one. The case at bar, however, shows, that the defendant intended to commit a trespass on the public, in cutting the trees, but by mistake trespassed on the plaintiff. We can perceive no reason why he should be exempted from the statute penalty. The rights of the public should be regarded by law, with as much care as the rights of an individual; and if the intention had been to commit a trespass on A’s land, but by mistake it was committed on the land of B, we could not protect the defendant for his honest intentions, for he intended a trespass. Nor can he claim protection because he intended a trespass on the public, with any more grace, than if he intended to commit the trespass on the land of an individual, but by mistake went on the lands of one, he did not intend to injure. Both his act, and his intention, were tortious, and he cannot claim exemption from the penalty of the statute.

The plaintiff in error also insists, that the court should have given the charge, “ that it was necessary to prove, under the pleadings in this case, both a cutting, and a taking away from the lands of the defendant.” We do not well perceive how this charge, if given, could have benefited him, for the record shows, that the proof was full, and ample to show, not only that the trees were cut on the land of the plaintiff, but that they were hauled away, and were used in the building of the house of the defendant. But we are entirely satisfied, that the cutting alone, if done with a knowledge that the party was doing a wrongful act, or that he was cutting trees on land which did not belong to him, is sufficient, and that it is not necessary he should carry them off, in order to subject him to the penalty. The language of the act is, “ if any one shall cut down, carry away, or destroy.” The design of this act, was to prevent trespasses on the lands of others, and it would be a perversion of the language, as well as of the intent, to hold, that one does not incur the penalty by cutting down alone. The disjunctive “ or,” is used, and the party may incur the penalty by cutting down, or by carrying away, or by destroying trees, on the lands of another.

There is no error in the judgment, and it roust be affirmed.