Clifton Iron Co. v. Curry

• Decision Date: 14 November 1895
• Citation: 108 Ala. 581,18 So. 554
• Parties: CLIFTON IRON CO. v. CURRY. SAME v. JEMISON LUMBER CO. ET AL.
• Court: Alabama Supreme Court

18 So. 554

108 Ala. 581

CLIFTON IRON CO. v. CURRY.

SAME v. JEMISON LUMBER CO. ET AL.

Supreme Court of Alabama

November 14, 1895

Appeal from circuit court, Chilton county; N. D. Denson, Judge.

Actions by the Clifton Iron Company against S. A. Curry and against the Jemison Lumber Company and others to recover the statutory penalty, under Code 1886, § 3296, for cutting trees without the consent of the owner of the land. Judgments were rendered for defendants, and plaintiff appeals. Affirmed.

The facts of these two cases and the propositions of law involved, being substantially the same, they were submitted together. The facts of the cases are sufficiently stated in the opinion. The plaintiff offered to introduce in evidence the deed by which Curry, the owner of the land, conveyed to it all the "timber trees, logs, and saplings on said land," and the right "to enter upon said lands, and cut and carry away the trees, logs, and saplings thereon." To the introduction of this deed in evidence the defendants each objected, on the ground that it was a conveyance of the timber upon the land, and not a conveyance of the land itself, and did not show that the plaintiff was the owner of said land. The court sustained the objection and the plaintiff excepted. Upon the plaintiff offering to show, by one of the witnesses introduced in its behalf, that the defendants had entered upon the lands involved in this controversy, and cut down and removed there from a large number of oak and pine trees, without the consent or knowledge of the plaintiff, the defendants objected to the admission of this testimony, on the ground that the plaintiff was not the owner of the land. The court sustained the objection, and the plaintiff duly excepted. After the introduction of all the evidence, the court, at the request of the defendants in each case, gave the general affirmative charge in their behalf, and to the giving of each of these charges the plaintiff separately excepted. There was judgment for the defendants in each of the cases, and the plaintiff appeals, and assigns as error the giving of the general affirmative charge at the request of the defendants.

Knox Bowie & Dixon, for appellant.

Houghton & Collier, for appellees.

McCLELLAN J.

These are actions by the Clifton Iron Company against Curry and the Jemison Lumber Company et al., respectively, for the recovery of the statutory penalty, prescribed by section 3296 of the Code, for the destruction, injury, or removal of trees. Said Curry at one time owned the absolute fee in the land upon which the trees alleged to have been destroyed, injured, or removed were standing, and all interests in it. Prior to the wrong complained of, he executed a deed to the plaintiff whereby he conveyed to it, its "heirs and assigns forever," all the "timber trees, logs, and saplings" then on the land, vested in said iron company "the right to enter upon said lands, take possession of same for the purpose, and to cut, fell, hew, saw, convert and manufacture, and haul or transport on, upon, and from said lands all the trees, logs, saplings of every sort and description upon the said land," and covenanted and agreed with said company "that no other person or corporation, natural or artificial, shall be granted or have the right to construct, build, buy, or use any road, tram-way, or railroad over or across or upon said land, so long as the grantee shall not have cut and taken all the timber, trees, etc., owned and conveyed to said company on said land." The deed also contains a covenant of seisin in fee, a covenant against incumbrances, and a warranty of title. This instrument was plaintiff's only muniment, and upon it alone it asserted such interest in the land as entitled it to maintain these actions. The trial court held that plaintiff was not the owner of the land, within the meaning of said section of the Code, and hence could not maintain an action thereunder. The section in question is in the following language: "Any person who cuts down, girdles, deadens or destroys, or takes away, if already cut down or fallen, any...