Bradford v. Boozer

• Decision Date: 09 February 1904
• Citation: 139 Ala. 502,36 So. 716
• Parties: BRADFORD v. BOOZER.
• Court: Alabama Supreme Court

36 So. 716

139 Ala. 502

BRADFORD v. BOOZER.

Supreme Court of Alabama

February 9, 1904

Appeal from Circuit Court, Marengo County; Jno. C. Anderson, Judge.

Action by T. H. Bradford against J. B. Boozer. From a judgment for defendant, plaintiff appeals. Reversed.

The cause was tried upon an agreed statement of facts, in which the following facts were admitted: The plaintiff owned and had possession of and title to the lands described in the complaint for a number of years prior to and during the year 1901, and until the trial of the cause. The defendant went upon said land on December 2, 1901, at the time alleged in the complaint, and cut 14 oak trees and 17 hickory trees. On September 20, 1901, the plaintiff warned the defendant not to go on his land, and never thereafter gave his consent for him to do so. At the May term, 1901, of the commissioners' court of Marengo county, the defendant made an application to establish a private road across the land of the plaintiff described in the complaint. The court granted the order appointed viewers for the establishment of the road, the viewers made their report, which was confirmed, and the damages assessed were paid into court by the defendant. Thereupon the defendant received the notice authorizing and instructing him to open the road as asked for, and do all things authorized by the statutes relating to and governing the opening of private roads. After receiving this notice the defendant cut the said trees, as above stated, in the road as marked out by the viewers. The order of the commissioners' court establishing the said road was void and the judge of the circuit court of Marengo county vacated and set aside said order establishing said road. Upon these facts the court, at the request of the defendant, gave the general affirmative charge in his behalf, and to the giving of this charge the plaintiff duly excepted.

Miller & Herbert, for appellant.

Canterbury & Gilder, for appellee.

DOWDELL J.

The complaint in this case contained two counts: One for the statutory penalty for cutting trees, and the other for trespass. The record does not show what pleas were filed. The judgment recites that issue was joined, and a verdict in favor of the defendant was rendered. As a general proposition, in such case, it will be presumed that only the general issue was pleaded. Hatchett v. Molton, 76 Ala. 410; Odum v. R. & F. R. R. Co., 94 Ala. 488, 10 So. 222. But as an exception to this general rule, when the bill of exceptions shows that the issue was on a special plea, and the cause was so treated and tried by the parties see McLendon v. Grice, 119 Ala. 513, 24 So. 846; Brinson v. Edwards, 94 Ala. 447, 10 So. 219; 1 Brick. p. 781,...