Lowery v. Rowland , 104 Ala. 420 ( 1893 )

HARALSON, J.

The original complaint consisted of five counts, some in trespass and trover, against defendant, for having entered upon lands belonging to plaintiffs and cutting, carrying away and converting to his own use, the valuable timbers therefrom. A demurrer was interposed to the complaint, and to its different counts, which was sustained. Thereupon, the plaintiffs asked, and were allowed to file an amended complaint, in two counts, marked in the record, 1 and 4, to which the defendant made no objection, on any account, by way of demurrer, but to which he filed seven pleas.

The two counts constituting the amended complaint, were in case to recover damages done by the defendant to the reversionary interest of the plaintiffs in the lands described. The first set up in substance, that they owned a reversionary interest in said lands, subject to their mother’s right of quarantine and dower; that said lands were the place of residence of James Rowland, (who was their father, and who, as the proofs show, died intestate in 1885) at the time of his death and before; that the estate of said. James Rowland was solvent; that no administrator had ever been appointed on his estate and no dower had been assigned to his widow — their mother— Mrs. Parzetta Rowland, in said lands, nor had they been set apart to her as her homestead, exempt from administration ; that plaintiffs are the only children and are the sole heirs of said James Rowland, deceased, and as such, they own said lands, subject to the quarantine and dower right Of their mother, who, under such quarantine and dower right, had possession of said lands at the time the inj uries complained of were done to their reversion in said lands by the defendant.

The second is like the first count, except that it shows the damage done to their reversion inr said lands by defendant was committed between the first days of December, 1886 and 1891; that the defendant entered on said lands by virtue of a “release,” executed to him by the mother of plaintiffs, to the timber growing on said lands; that they were residing with their mother on said lands, between the dates given when the said injuries were done . to said lands by defendant, and that said lands were their property, subject to their mother’s right of quarantine and dower. Under the Code, it may be well to state, that heirs take as tenants in common. Code, § 1923.

The first plea, was that of the general issue, on which issue was joined ; the second, the statute of limitations of one year, on which issue was joined, but of which no notice was afterwards taken ; the third, fourth, fifth and sixth were demurred to, and the demurrers sustained ; and the seventh, set-off, on which issue was taken, but which thereafter disappeared. The case was tried on the plea of the general issue.

1. The 3d plea, in its first part, is no more than the general issue, and in its latter part, is in the nature of a confession and avoidance, setting up, that the trees were cut by the consent, direction and instruction of Parzetta Bowland and P. L. Bowland, without showing any right or authority in either, or both, to give such consent and instructions.

Under our statutes, the widow of an intestate is entitled to retain, free of rent, until her dower is assigned, the possession of the dwelling house in which her husband most usually resided next before his death, with the offices and buildings appurtenant thereto, and the plantation connected therewith; but this right is not an estate in the land, is not alienable, and terminates when she loses the right to dower. — Code, § 1900; Norton v. Norton, 94 Ala. 481 ; 3 Brick. Dig., 321, § 4.

Mrs. Bowland, as doweress, was entitled, of common .right, to reasonable wood off the land for fuel, fences, agricultural erections and other necessary improvements, but to no more. She could not, herself, nor could she authorize any one else to, destroy the timbers, nor do any other permanent injury to the inheritance. — 4 Kent Com. 73 ; Van Deusen v. Young, 29 N. Y. 9.

This plea was, however, subject to the demurrer interposed, for that it alleges the trees were cut by the consent and direction of P. L. Bowland, one of the plaintiffs in the action, who was one of the co-heirs and co-tenants. If he gave his consent to the cutting of the trees, he could not recover, and if so, none of the plaintiffs — all suing in the same right — could, since, in such a case, all the plaintiffs must be entitled to recover or none can.— Freeman on Coten. & Part., § 356. But, this error was afterwards cured, in that the complaint was amended by striking out his name.

2. The 4th and 5th pleas were demurrable for the same reasons the 3d was.

3. The 6th is nothing more than a set-off, defective as such, and not pleadable to this form of action. — 3 Brick. Dig., 741, § 52; Whitworth v. Thomas, 83 Ala. 309; Russell v. Russell, 62 Ala. 49 ; Brooks v. Rogers, 101 Ala. 111.

4. There was no error in the matter of the amendments to the complaint, which were allowed by the court without objection or exception on the part of the defendant. One of these amendments consisted in allowing the complaint to be amended by striking out three of the twelve parties suing as plaintiffs, including said P. L. Rowland, and prosecuting the suit' to judgment in the name of the remaining nine. They were co-heirs and co-tenants in the lands of their father, and there are authorities which hold, that for an injury done to the common inheritance in land, the heirs must all sue. — Thompson v. Mawhinney, 17 Ala. 363 ; Pruitt v. Ellington, 59 Ala. 454; Austin v. Hall, 13 Johns. 286 ; Chitty on Plead., 14, 74, 75; Freeman on Cotenancy & Part., § 347. But, when for any reason, as there may be, there is no joint interest, and the co-tenants are not jointly interested in the damages, the remedy is severable. In such cases where less than the whole number sue, the recovery is graduated to the interest of those suing. — Pruitt v. Ellington, 59 Ala. 454, supra; Lothrop v. Arnold, 25 Me. 136; 1 Chit, on Pleading, 75 and note E. Here, nine of the twelve heirs are the plaintiffs, three originally joined" having been stricken out of the complaint, without objection on the part of the defendant. The recovery should have been, not for the whole damages suffered to the inheritance, but for their proportionate share thereof.

5. The evidence in the case was without conflict and sustained the averments of the complaint. The estimates of the value of the trees cut and carried off the lands ranged from 25 to 50 cents, each, and there was evidence from which the jury could, with reasonable certainty, ascertain the number of trees that were cut and removed by defendant. The bill of exceptions shows, that the counsel of plaintiff and defendant agreed on the value of the trees cut and removed by defendant, as the basis of the assessment of damages. They so stated, according to the bill of exceptions, in the presence of the court, in response to enquiries submitted by the court, and proceeded to examine, each, his witnesses, to ascertain the number and value of the trees cut and removed. The number and value of these might be evidence tending to show the damage to the inheritance and admissible as such ; but, it is not the only and real criterion. The true enquiry is the injury to the estate of inheritance in reversion by destroying the trees. — Clark v. Zeigler, 79 Ala. 346 ; Van Deusen v. Young, 29 N. Y. 10; Chipman v. Hibberd, 6 Cal. 162 ; Dutro v. Wilson, 4 Ohio St. 101; 5 Amer. & Eng. Encyc. of Law, 36.

Inasmuch as the defendant agreed to this basis of estimating damages, he can not now be heard to assign it as error. An exception can not be based on a ruling of the court, which was induced by the party excepting.— Shelton v. The State, 73 Ala. 5; Leonard v. The State, 66 Ala. 461.

6. There was no error, therefore, in the first branch of the general charge to the jury, that if they were reasonably satisfied from all the evidence, that the defendant cut or caused to be cut and removed from the land described in the complaint the trees, and could reasonably ascertain from the evidence the number and value of the trees so cut and removed by the defendant, that they should find for the plaintiff. The objection of defendant to this charge was not based on any specified ground, and under the rule of damages agreed on by defendant, it was the first and proper hypothesis, which if true, entitled plaintiff to some recovery.

7. The succeeding part of the court’s charge, which instructed the jury, that if they found for the plaintiff for the number and value of any pine trees cut and removed by defendant from said iand, they should assess the value of such trees, and allow interest thereon from the time the trees were cut and removed, to the time of the trial, was not a proper instruction. Its vice is not in the instruction to allow interest, for that, under the rule of damages agreed on, was not improper (Burns v. Cam-bell, 71 Ala. 273) ; but, it consists in giving to a part of the heirs the total damage done to the whole inheritance, whereas, it should have been graduated to the interest of the heirs suing.

8. There was no error in refusing the 2d charge requested by the defendant.

9. We apprehend that the rule laid down for the computation of damages by defendant in the 3d charge asked and refused is too exacting. It required the jury to be satisfied to a reasonable certainty of a definite number of trees which the defendant cut, or else not to find for the plaintiffs at all for any thing. If the evidence gave them reasonable satisfaction, of the number, although they might not be certain of the very number— no less and no more — they might find a verdict for the number they were reasonably satisfied were taken. In civil cases, reasonable satisfaction, not satisfaction beyond reasonable doubt, is all that is required.

Reversed and remanded.