Abercrombie v. Windham

• Citation: 127 Ala. 179,28 So. 387
• Parties: ABERCROMBIE ET AL. v. WINDHAM.
• Decision Date: 10 May 1900
• Court: Supreme Court of Alabama

28 So. 387

127 Ala. 179

ABERCROMBIE ET AL. v. WINDHAM.

Supreme Court of Alabama

May 10, 1900

Appeal from circuit court, Coffee county; J. W. Foster, Judge.

Action by Hugh Windham against Abercrombie & Williams for trespass quare clausum fregit. From a judgment in favor of plaintiff defendants appeal. Reversed.

This action was brought by the appellee, Hugh Windham, against Abercrombie & Williams, to recover damages for trespass quare clausum fregit. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The court, in its general charge, among other things, instructed the jury as follows "If you find from the evidence that plaintiff is entitled to recover, then and in that event the measure of plaintiff's damages is the amount of the difference between the market value of the lands in question at the time defendants' mules began to go on the lands, and their market value when the mules stopped going on them, if they depreciated in value during said term." The defendants separately excepted to this portion of the court's general charge, and also separately excepted to the court's refusal to give, among others, each of the following charges requested by them: "(3) If, at any time after the commencement of the alleged trespass, as much as two or more days and nights, within the time covered by the complaint, there was no trespass or entry upon the lands in question by defendants or their stock, but there was a lapse of two or more days and nights at a time, followed by other trespasses within said time, then there cannot be a recovery for more than nominal damages. (4) Unless the jury believe from the evidence that the alleged trespass was a continuous trespass from one day to the next, between the dates of May 8 and July 20, 1898, your verdict will be for the defendants. (5) In this state a man's uninclosed lands may be entered upon at pleasure by others or their stock, and persons who have not been forbidden by the owner to enter thereon are not liable in trespass for such entry when made; and, if the lands in question were not inclosed at the time of the trespass complained of by them, the verdict must be for the defendants. (6) In this case there can be no recovery for more than nominal damages, if the jury believe the evidence. (7) If the jury believe from the evidence that defendants' mules were only carried on plaintiff's...