Ford v. Bradford ( 1923 )

Appellant brought this suit against appellee for the recovery of damages for the cutting of certain timber by the defendant on lands claimed by plaintiff.

There were three counts in the complaint, the first of which sought recovery of the statutory penalty for the cutting of trees; the second being in trespass; and the third in trover. The jury returned a verdict in favor of the defendant, from which the plaintiff has prosecuted this appeal.

The plaintiff owned the S.E. 1/4 of the S.W. 1/4 of section 16, township 20, range 9, in Clay county, and the defendant was the owner of the 40 acres adjoining this land on the north, being, of course the N.E. 1/4 of the S.W. 1/4 of said section. Plaintiff also owned the S.W. 1/4 of the S.W. 1/4 of said section, and the defendant also owned the 20 acres on the east side of the N.W. 1/4 of the S.W. 1/4 of this section; but reference to these lands appears in the record only for evidential purposes, relating to the correct boundary lines.

The timber is alleged to have been cut on the S.E. 1/4 of the S.W. 1/4, and the real litigated issue between the parties concerned the true boundary line between this 40 acres and the 40 acres adjoining it on the north belonging to the defendant. The plaintiff purchased this land from one Mary A. Powell in May, 1920, and offered in evidence his deed thereto. The plaintiff then testified that immediately after the execution of this deed he went in possession of the land conveyed, and also offered to show that prior to his taking possession Mary A. Powell, his grantor, was in possession, and had been for more than 30 years. The court sustained the defendant's objection to this evidence, and in this committed error. Such proof not only was for the purpose of establishing the prima facie title to the land in controversy, but likewise as tending to establish an element of adverse possession.

We find no assignment of error raising the question argued in brief of counsel relating to the ruling of the court in sustaining objections to questions asked the witness J. W. Wood.

There was sharp conflict in the testimony concerning the true boundary line. The surveyor, Currie, was a witness favorable to the plaintiff, and one Horn, also a surveyor, testified favorably for the defendant, and his survey varied greatly from that of Currie. The field notes in evidence indicate that the 40 acres here in question, claimed by the plaintiff, were of normal size. The defendant, after the Horn survey, erected a wire fence across this land. One McCoy testified for defendant, and in support of the Horn survey. He owned 20 acres adjoining the defendant's 20 in the N.W. 1/4 of the S.W. 1/4 of this section. The evidence for the plaintiff tended to show that Horn in his survey did not start from the government corner, although there was such a corner established; and the plaintiff's evidence tended to show that Horn's survey was entirely incorrect. McCoy testified he had known this land for something like 28 years, that he was present when the Horn survey was made, and was acquainted with the line of the survey of witness Currie. He testified in regard to where the timber was cut, and was permitted by the court to testify that the Horn survey was nearer on the line claimed by him as to the 20 acres than the Currie survey. Plaintiff, on cross-examination, asked this witness: If the lines of these respective surveys remained as they are, would not the wire which defendant had stretched across the land take practically half of the 40 claimed by the defendant? The defendant's objection to this question was sustained.

We are of the opinion, that upon cross-examination, in view of the details testified to by this witness, this question should have been permitted as tending to impeach the Horn survey. As testing the knowledge of the witness, the plaintiff asked how many yards from the northeast corner of this 40 to the southeast corner thereof. The defendant's objection was sustained, and in this the court also committed error.

One T. C. Smith was a witness for the defendant, and his testimony tended to show that none of the trees that were cut were on the plaintiff's land. In order to show interest or bias, the plaintiff asked the witness on cross-examination if judgment had not been rendered against him for cutting some timber on that side of the boundary line, and also if the witness was not one of those who employed Mr. Horn to make the survey. The defendant's objections to these questions were sustained by the court. This was also error, as the plaintiff clearly had the right to show the interest or bias of the witness, and stated to the court that such was the purpose of the testimony. The evidence was in sharp conflict, and the affirmative charge was properly refused as to each count of the complaint.

We are of the opinion that the substance of charges 4, 5, 6, and 7, refused to the plaintiff, were embraced in the oral charge of the court.

Charge 8 was properly refused, as it permits a recovery for the statutory penalty without proof of knowledge and willful conduct on the part of the defendant himself. White v. Farris,124 Ala. 461, 27 So. 259.

For the errors indicated, let the judgment be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.