Elmore v. Fields

• Decision Date: 28 November 1907
• Citation: 45 So. 66,153 Ala. 345
• Parties: ELMORE ET AL. v. FIELDS.
• Court: Alabama Supreme Court

45 So. 66

153 Ala. 345

ELMORE ET AL. v. FIELDS.

Supreme Court of Alabama

November 28, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Elmore County; A. H. Alston, Judge.

Action by Dennis Elmore and others against S.D. Fields. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

The second count in the complaint is as follows: "Plaintiff claims of the defendant the further sum of $2,000 as damages for trespass on a tract of land belonging to them in the county of Elmore and cutting therefrom a large number of trees, to wit, 1,000; said trespass being committed during the month of August, 1902, and the land upon which it was committed being a strip of timber land on the northern border of plaintiff's land, in or adjacent to the N.E. 1/4 of the N.W. 1/4 of section 36, township 19, range 17 E., in the county of Elmore, and immediately south of the land formerly owned by one Thornhill, and now owned by the state of Alabama. And plaintiff avers that said trespass was willful and malicious." The defendant demurred to count 2 on the following grounds: "(1) Said complaint is uncertain vague, and indefinite in the description of the land alleged in the same to have been trespassed upon. (2) Said complaint fails to show where the lands alleged to have been trespassed upon lie. (3) Said complaint fails to show the lands of what Thornhill are referred to, and where same lies. (4) Said complaint fails to show what land of the state of Alabama is referred to." These demurrers were sustained, and defendant filed the following pleas to counts 1 and 3: (1) The general issue. (2) That the defendant is not hable in damage for said act complained of, in that he is the agent officer, superintendent, or employé of the state of Alabama having in charge the State Penitentiary at Spigners, Ala. That said state penitentiary is a state institution established exclusively for public purposes, to wit, the care and custody of convicts of the state of Alabama, and maintained and supported by direct appropriation of the state's moneys, having no stockholders, and not being maintained, organized, or operated for the pecuniary benefit of its board of inspectors or the supervisors or any other person. That said acts complained of were committed by said S.D. Fields while exercising the function, duties, and within the scope of his authority, as such employé, officer superintendent, or agent of the state of Alabama. (6) That defendant is warden of prison No. 3, a prison owned and operated by the state of Alabama and situated at and around Spigners, Elmore county, Ala. That the defendant, warden of said prison, is, and was at the time of the acts complained of, the duly authorized agent of the state of Alabama to hold possession of, manage, and control the property of the state of Alabama, situated in and around Spigners, Elmore county Ala., as above described and set forth. That the plaintiff owned land adjoining that of the state of Alabama in the vicinity above mentioned. That the dividing line of the lands owned by the state of Alabama and plaintiff is the section line between sections 25 and 36, around Spigners, Ala. That the controversy between the plaintiff and defendant in fact depends upon the location of said section line between sections 25 and 36. That the defendant took possession of the lands belonging to the state of Alabama above mentioned up to the lines where the same had been previously located and marked by monuments used by the state of Alabama in locating and fixing the boundaries of its land. That he took possession of such land according to such boundaries, not in his individual capacity, nor in his own name and right, but in the name of the state of Alabama, as the lands were marked by the monuments used by the state of Alabama, and not beyond the lines so marked and defined. That, if plaintiff be permitted to maintain this suit, it will involve the title of the state of Alabama to the land it claims to own and was in possession of prior to the time the defendant took possession of the same in the name of the state of Alabama, and be, in effect, a suit against the state of Alabama. Wherefore defendant says that plaintiff cannot maintain it. Plaintiff interposed the following demurrers to plea 2: "(1) The plea does not set up or show any law for or legal authority in the defendant, while acting as the agent, officer, superintendent, or employé of the state of Alabama, to do the things charged against him in the complaint. (2) The state does and can only authorize lawful acts on the part of her officers, agents, and employés, and the plea does not show the act of the defendant to have been lawful and other similar grounds." To plea 6 the following demurrers, in addition to those assigned to plea 2, which are also assigned to 6: "(1) The said plea does not show that any one had the right to locate the lines of the lands of the...