Ford v. Bradford
| Decision Date | 19 March 1925 |
| Docket Number | 7 Div. 551 |
| Citation | 212 Ala. 515,103 So. 549 |
| Parties | FORD v. BRADFORD. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.
Action by A.C. Ford against J.F. Bradford. Judgment for defendant and plaintiff appeals. Reversed and remanded.
Transferred from Court of Appeals under Acts 1911, p. 449, § 6.
Walter S. Smith, of Lineville, for appellant.
A.L Crumpton, of Ashland, for appellee.
The suit is to recover for trees alleged to have been cut on plaintiff's land. The original complaint contained three counts: One for the statutory penalty for cutting trees, one in trespass, and one in trover. The case was here on former appeal. See Ford v. Bradford, 210 Ala. 48, 97 So 55.
After the cause was remanded, common counts were added. In the latter trial all these counts were submitted to the jury except the count for money had and received, which was charged out by the court. There was plea of the general issue as to all counts, and a special plea to the first three counts, in which defendant denies cutting plaintiff's timber, and avers that "if he did cut timber from the lands alleged in the complaint, it was under the honest belief and impression that it was from his own land." By joining issue on this plea it was made a good answer, if proven, to the counts in trespass and trover.
There are 125 assignments of error, of which about 100 relate to rulings on evidence. All these must be viewed in the light of the issues made by the pleadings. We seek to deal with them, so far as presented in briefs, in such manner as to best illustrate the principles involved.
The parties are adjoining landowners, the trees cut being near the boundary and claimed by each to be on his land. Plaintiff's land is described in his deed and the count for statutory penalty as S. 1/2 of S.W. 1/4 of section 16, etc. Defendant's land lies north and adjoins for three-fourths the distance, beginning at the northeast corner of plaintiff's land.
It may be noted here that in the count for statutory penalty, the right of recovery is limited to trees cut on lands within the government subdivision named, to be determined by a correct survey. The other counts merely claim the trees as the property of plaintiff, and, the evidence warranting, a recovery may be had if the trees were on plaintiff's side of an agreed line, or one established by acquiescence and adverse possession.
It appears that after the trees were cut each party had the disputed line surveyed by a county surveyor. Plaintiff's survey is known in the case as the Currie survey, and that of defendant as the Horn survey. The southwest corner of plaintiff's land is the southwest corner of the section, and both surveyors undertake to locate this corner. Horn's survey located it about 185 yards south of its location in the Currie survey, resulting in a corresponding difference in the location of the east and west boundary line in dispute. The evidences of the true location of the southwest corner of the section thus became a matter of prime importance.
On examination of the plaintiff as a witness, the government field notes of this corner were introduced, calling for two red oaks, a post oak, and a chestnut, as pointers. Witness testified he was present when Currie made the survey; that he had the field notes at the time, and describing what was found as evidence of the corner, said:
"We found a chestnut stump that was plowed up, and when we measured off the distance the chestnut belonged to be, we taken a mallet and found some roots where the chestnut came from."
The court granted a motion by defendant to exclude the statement that they "measured off the distance the chestnut belonged to be"; also a motion to exclude his statement that the surveyor "tested at the other places called for by the notes--he tested for the trees"; and sustained objection to the question whether was found "the same kind of trees the field notes called for, and that have been offered in evidence."
In all these rulings the court was in error. What search was made for original evidence of the corner was pertinent as part of the survey. What was found went to the correctness of the survey, and the manner of statement as a mere shorthand rendering of facts is not objectionable.
The testimony of plaintiff that it was agreed defendant should go ahead and haul the timber which had been cut, and saw it, and give plaintiff one-fourth the lumber, was improperly excluded. In connection with other evidence given by plaintiff it was a circumstance tending to show an admission of plaintiff's ownership of the trees. If the agreement was made by way of compromise, it was admissible under the common counts. Negotiations looking to a compromise of controversies are privileged communications. This on grounds of public policy--the encouragement of adjustments and good neighborhood. But if the negotiations proceed to an accord, the existence of a bona fide controversy is sufficient consideration to support the agreement. Evidence of the amount of lumber sawed from the logs and its value should also have been received.
Witness Ward testified to being present at the Currie survey, and the evidences found at the southwest corner of the section. His further evidence that the surveyor measured from that corner was improperly excluded. There was also error in sustaining the objection to the question: "In running the south line of section 16, did you notice any hacks along there?"
Former surveys, evidenced by the usual surveyors' marks, may be shown in connection with the later survey. Evidence also offered that this was generally known and acquiesced in by adjoining landowners as the section line, was competent. Billingsley v. Bates, 30 Ala. 376, 68 Am.Dec. 126.
A surveyor shown to have had long experience as a county surveyor, after stating the facts relating to his survey, may give his opinion as an expert that his survey is correct, and that the line as surveyed is the true line. Smith v. Bachus, 195 Ala. 8, 70 So. 261. There was error in refusing the offered testimony of the witness Currie on these points.
The evidence for plaintiff tended to show that more than 30 years ago the owner of one of the adjoining tracts had a surveyor Pitts, to survey and...
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Ala. River Grp., Inc. v. Conecuh Timber, Inc.
...356, 179 So. 256 (1938). Negotiations looking to a compromise of controversies are privileged and inadmissible. See, Ford v. Bradford, 212 Ala. 515, 103 So. 549 (1925). Likewise, offers to perform that are conditional amount to mere efforts to settle a pending claim and are thus inadmissibl......
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...356, 179 So. 256 (1938). Negotiations looking to a compromise of controversies are privileged and inadmissible. See, Ford v. Bradford, 212 Ala. 515, 103 So. 549 (1925). Likewise, offers to perform that are conditional amount to mere efforts to settle a pending claim and are thus inadmissibl......
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... ... original lines were in fact apart from any question of ... adverse possession. Ford v. Bradford, 212 Ala. 515, ... 103 So. 549 ... As ... early as McQueen v. Lampley, 74 Ala. 409, Judge ... Stone pointed out the ... ...
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...said by defendants in discussing the matter of compromise is sustained by the authorities. 22 Corpus Juris 311, and 320; Ford v. Bradford, 212 Ala. 515, 103 So. 549. It also be observed that, assuming a proper predicate for the impeachment of Fred Banks, who had testified in the case, had b......