Davis v. Miller Brent Lumber Co.

Citation44 So. 639,151 Ala. 580
PartiesDAVIS v. MILLER BRENT LUMBER CO.
Decision Date02 July 1907
CourtSupreme Court of Alabama

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action of trespass by J. E. Davis against the Miller Brent Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The following charges were refused to plaintiff:

(1) The affirmative charge.

(2) "If the jury are reasonably satisfied from the evidence in this case that at the time the plaintiff and G. E. Davis her husband, executed the instrument dated the 30th day of June, 1897, whereby she sold and conveyed to the H. L. Berry Company the right to enter upon and to cut and carry away the pine trees therein named, the title to said land was in G. E Davis, and that the said G. E. Davis and plaintiff, his wife were residing upon said land as a homestead, then and in that event said instrument will be void as a conveyance of any right in said trees, and the same would be a mere license which the said G. E. Davis had the right to revoke at his pleasure before the said company entered upon said land for the purpose of cutting said trees."

(3) "I charge you, gentlemen of the jury, that under the undisputed evidence in this case the instrument executed by the plaintiff and her husband, G. E. Davis, on the 30th day of June, 1897, whereby they undertook to sell and convey to the H. L. Berry Company the right to enter upon said lands at any time within seven years from said date, was not a valid conveyance of any interest to said company of the trees growing upon the said land, but the same was a mere license, which the said G. E. Davis had the right to revoke at any time."

(4) "The instrument executed by the plaintiff and G. E. Davis, her husband, to the H. L. Berry Company, under the testimony in this case, was not a valid conveyance of any interest in the trees growing on said lands, but was a mere license, and the execution of the conveyance from G. E. Davis to plaintiff had the effect of revoking said license."

(5) "If the jury reasonably believe from the evidence in this case that the defendant entered upon the land described in the complaint during the time alleged therein, and cut the trees thereon, and converted the same to their own use, and that at said time plaintiff was in the possession of said land, and that before the defendant entered upon said land and cut the trees she or her agent warned defendants not to enter upon said land, your verdict will be for the plaintiff."

(6) "Whether or not the plaintiff and her husband executed the deed to W. M. Duvall introduced in evidence, if at the time defendants entered upon the said lands and cut said trees, if you are reasonably satisfied from the evidence that they did enter thereon and cut the trees, the plaintiff was in the actual possession of said lands, claiming them as her own, and before defendants entered on said land the plaintiff or her agent gave defendants notice not to enter upon said land, the defendants were guilty of a trespass in so entering upon said land and cutting said trees."

(7) "The jury are authorized to assess as damages the highest value of the trees, shown by the evidence in the case, cut by the defendant from said land at any time from the date of said cutting until the time of the trial, if you find for the plaintiff."

(9) "The court charges the jury that Duvall acquired no title to the timber trees upon plaintiff's land by the deed introduced in evidence, purporting to have been executed by the plaintiff and her husband to the said Duvall."

(10) "The court charges the jury that the instrument signed by G. E. Davis and J. E. Davis, dated the 17th day of February, 1902, to W. M. Duvall, which is in evidence, did not convey the legal title to the pine timber on plaintiff's land."

(10 1/2) "The court charges the jury that the instrument signed by G. E. Davis and the plaintiff, J. E. Davis, bearing date of February 17, 1902, which is in evidence, did not convey the legal title to the pine timber upon plaintiff's land to the H. L. Berry Company."

(13) "The court charges the jury that the H. L. Berry Company acquired no rights in the timber upon plaintiff's land, nor the right to enter upon her land, by the instrument bearing date February 17, 1902, which is in evidence, to W. M. Duvall."

(15) "The court charges the jury that, if they are reasonably satisfied from the evidence in this case that the said J. E. Davis, the plaintiff, cannot read, on that account they should the more carefully scan and scrutinize the transaction in which said instrument was signed by her and her husband; and if they are also reasonably satisfied from the evidence that, at the time of or immediately before the same was signed, A. S. Douglass knowingly made false representations to her as to the nature of the instrument of a material nature, and said representations were made with knowledge by said Douglass of their falsity, and the plaintiff believed said representations to be true, and, so believing, signed said instrument, then and in that event you will find that said instrument was obtained by fraud."

(16) "If the jury are reasonably satisfied from the evidence in this case that the defendants entered upon the lands described in the complaint during the time alleged in the complaint, and cut trees therefrom, and converted the same to their own use, and that at the time the plaintiff was in the possession of said land, and before the defendants entered thereon plaintiff's agent gave notice to the defendants' employés who entered thereon not to so enter upon the same, and they entered upon said land and cut said trees without plaintiff's permission and consent, then and in that event you would be authorized to find that the defendant committed a trespass in entering upon said land."

(18) "If the jury believe reasonably, from the evidence in this case, that the defendants' employés entered upon the plaintiff's land without her consent and in violation of a notice not to do so, and plaintiff was in possession of said land at the time, the defendants were guilty of a trespass."

(19) "The court charges the jury that the Miller Brent Lumber Company did not acquire any title to the trees on plaintiff's land described in the complaint by the deed in evidence from W. M. Duvall to it, dated 27th day of March, 1905."

J. F. Sanders, for appellant.

W. O. Mulkey, for appellee.

SIMPSON J.

This was an action of trespass to lands by cutting timber thereon. The plaintiff proved title in the lands and that the timber had been cut by the defendant in December, 1905, and January, 1906. The defendant claimed that in June, 1897, the plaintiff, with her husband, G. E. Davis, conveyed to defendant all the timber which could be cut in seven years, and that on February 17, 1902, plaintiff and her husband executed another paper extending the previous timber lease for two years. The lands originally belonged to said G. E. Davis, but he conveyed them to his said wife January 12, 1900.

The plaintiff asked the witness Douglass, "What is the present value of pine timber, estimating the same by the cubic foot?" to which defendant excepted. The court sustained the objection, and ruled that it would confine plaintiff to proof of the value of the timber at the time of the cutting. While the ruling was erroneous it was without injury, as its effect was to allow plaintiff more proof in that direction than he was entitled to. The only count in the complaint is for trespass quare clausum fregit, and not for trespass de bonis asportatis. Hence the value of...

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17 cases
  • Howell v. City of Dothan
    • United States
    • Alabama Supreme Court
    • May 13, 1937
    ... ... realty (Davis v. Miller-Brent Lumber Co., 151 Ala ... 580, 44 So. 639), and that, ... ...
  • Alabama Great Southern R. Co. v. Russell
    • United States
    • Alabama Court of Appeals
    • March 22, 1949
    ...174 So. 624, 626, our Supreme Court stated: 'It is further established that growing trees are a part of the realty (Davis v. Miller-Brent Lumber Co., 151 Ala. 580, 44 So. 639), and that, where such timber is destroyed, the measure of damages is the diminished value of the land, caused by su......
  • Foust v. Kinney
    • United States
    • Alabama Supreme Court
    • November 28, 1918
    ... ... trespass. Brinkmeyer v. Bethea, 139 Ala. 376, 35 So ... 996; Davis v. Miller-Brent Lumber Co., 151 Ala. 580, ... 587, 44 So. 639; Gosdin v ... ...
  • Alabama Great Southern R. Co. v. Russell
    • United States
    • Alabama Court of Appeals
    • March 22, 1949
    ... ... Ed.; ... Grimsley v. First Ave. Coal & Lumber Co., 217 Ala ... 159, 115 So. 90. The term is a relative one, and its ... established that growing trees are a part of the realty ... ( Davis v. Miller-Brent [35 Ala.App. 352] Lumber ... Co., 151 Ala. 580, 44 So ... ...
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