Tutwiler Coal, Coke & Iron Co. v. Wheeler , 149 Ala. 354 ( 1907 )

DOWDELL, J. —

The wrong complained of was one against the possession, although it might have extended to a permanent injury of the freehold. The action is well brought for the wrong* to the possession ,and the averment in the complaint of plaintiff’s ownership of the land and of the permanent damage to the fee does not render the complaint for that reason demurrable. It was not necessary to a gopd cause of action for the plaintiff to allege in his complaint the time of the alleged wrong and damages. If the defendant wished to show that the claim for damages was barred by the statute, this was matter for plea. The demurrer to the complaint was properly overruled.

The plaintiff averred his ownership- of the land and undertook to prove it by parol evidence. This he could not do under the well-settled rules of evidence. The question to the plaintiff, “How many acres do- you own there?” embraced in the inquiry something more .than the number of acres in a particular tract, and extended to proof of title to the land. For this latter purpose this evidence was incompetent. The court erred in overruling the defendant’s objection to this question.— Withers v. State, 120 Ala. 394, 25 South. 568. But, if this were the only error, the cause would not be reversed, as it was rendered harmless by the defendant subsequently introducing evidence showing that the land in question was the plaintiff’s land.

The fifth plea of the defendant, on which the plaintiff took issue, was literally established by the evidence without conflict. This entitled the defendant to the general charge, as requested, and the court eared in its refusal. For this error the judgment must be reversed.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.