Ford v. Bradford

• Decision Date: 21 June 1923
• Docket Number: 7 Div. 380.
• Citation: 210 Ala. 48,97 So. 55
• Parties: FORD v. BRADFORD.
• Court: Alabama Supreme Court

97 So. 55

210 Ala. 48

FORD v. BRADFORD.

7 Div. 380.

Supreme Court of Alabama

June 21, 1923

Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.

Action by A. C. Ford against J. F. Bradford, for cutting timber. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

Walter S. Smith, of Lineville, for appellant.

Arthur L. Hardegree, of Ashland, for appellee.

GARDNER J.

Appellant brought this suit against appellee for the recovery of damages for the cutting of certain timber by the defendant on lands claimed by plaintiff.

There were three counts in the complaint, the first of which sought recovery of the statutory penalty for the cutting of trees the second being in trespass; and the third in trover. The jury returned a verdict in favor of the defendant, from which the plaintiff has prosecuted this appeal.

The plaintiff owned the S.E. 1/4 of the S.W. 1/4 of section 16 township 20, range 9, in Clay county, and the defendant was the owner of the 40 acres adjoining this land on the north being, of course the N.E. 1/4 of the S.W. 1/4 of said section. Plaintiff also owned the S.W. 1/4 of the S.W. 1/4 of said section, and the defendant also owned the 20 acres on the east side of the N.W. 1/4 of the S.W. 1/4 of this section; but reference to these lands appears in the record only for evidential purposes, relating to the correct boundary lines.

The timber is alleged to have been cut on the S.E. 1/4 of the S.W. 1/4, and the real litigated issue between the parties concerned the true boundary line between this 40 acres and the 40 acres adjoining it on the north belonging to the defendant. The plaintiff purchased this land from one Mary A. Powell in May, 1920, and offered in evidence his deed thereto. The plaintiff then testified that immediately after the execution of this deed he went in possession of the land conveyed, and also offered to show that prior to his taking possession Mary A. Powell, his grantor, was in possession, and had been for more than 30 years. The court sustained the defendant's objection to this evidence, and in this committed error. Such proof not only was for the purpose of establishing the prima facie title to the land in controversy, but likewise as tending to establish an element of adverse possession.

We find no assignment of error raising the question argued in brief of counsel relating to the ruling of the court in sustaining objections to questions asked the witness J. W. Wood.

There was sharp conflict in the testimony concerning the true boundary line. The surveyor, Currie, was a witness favorable to the plaintiff, and one Horn, also a surveyor, testified favorably for the defendant, and his survey varied greatly from that of Currie. The field notes in evidence indicate that the 40 acres here in question, claimed by the plaintiff were of normal size. The defendant, after the Horn survey, erected a wire fence across this land. One McCoy testified for defendant, and in support of the Horn survey. He owned 20 acres adjoining the defendant's 20 in the N.W. 1/4 of the S.W. 1/4 of this section. The evidence for the plaintiff tended to show that Horn in his survey did not start from the government corner, although there was such a corner established; and the plaintiff's evidence tended to show that...