Fuller v. Fair

• Decision Date: 16 January 1919
• Docket Number: 2 Div. 652
• Citation: 80 So. 814,202 Ala. 430
• Parties: FULLER v. FAIR.
• Court: Alabama Supreme Court

80 So. 814

202 Ala. 430

FULLER v. FAIR.

2 Div. 652

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Ejectment by J.A. Fair against N.C. Fuller. Judgment for the plaintiff and the defendant appeals. Reversed and remanded.

The following is charge K refused to the defendant:

I charge you that where adjoining or co-terminous owners agree upon a line as the dividing line, and occupy and claim it as such, the knowledge of such claim by the other, the claim is hostile and the possession adverse, and if you are reasonably satisfied from the evidence that the line along which the three-wire fence was built by E.H. Crawford along the east boundary of lot 51 was accepted and agreed line between the land of the defendant and those through whom he claimed and the land of the plaintiff, and those through whom he claimed, for a period of ten consecutive years or longer prior to the commencement of this suit, and that the defendant was in actual adverse possession of the land sued for at the commencement of this suit, your verdict should be for the defendant.

The witness Ellard was asked the question:

"State whether that line fence that you spoke of was treated as the line between you and the adjacent landowners for the period of time that you held this property."

Jerome T. Fuller and Lavender & Thompson, all of Centerville, for appellant.

C.D Logan and Ellison & Dominick, all of Centerville, for appellee.

THOMAS J.

The action is statutory ejectment.

During the introduction of evidence several exceptions were reserved by defendant to adverse rulings.

Over defendant's objection and exception, plaintiff was permitted to show by witness Grimes the "reasonable market value of that timber-45,000 feet--in Centerville stumpage before cut down," referring to the timber cut by plaintiff from lot 51. In an action for the recovery of land, or the possession thereof, in the nature of an action in ejectment, the plaintiff is permitted to recover "mesne profits and damages for waste," or any other injury to the lands, as the plaintiff's interest therein entitles him to recover, to be computed to the time of the verdict. Code 1907, §§ 3839, 3854. In his note to section 3854 of the Code, Mr. Justice Mayfield pointed to the conflict between Keller v. Bullington, 101 Ala. 267 270, 14 So. 466, where Justice Head declares that, in real actions at law to try the disputed question of title, all damages may be recovered, not only for mesne profits, but for injuries committed in the nature of trespass or waste; and Prestwood v. Watson, 111 Ala. 604, 610, 20 So. 600, where Chief Justice Brickell declares that a recovery of mesne profits, and not damages for destruction and removal of timber from the lands, may be had in an action of ejectment. To avert this conflict of authority, the foregoing sections of the Code were amended so as to permit the recovery of damages for mesne profits, for waste, or for any other injury to the land, as plaintiff's interest therein entitled him to recover.

McCay v. Parks, 79 So. 119, 121(8).

The value of the land before and after the waste was committed should have been shown, as the true measure of the damage sustained by its owner by reason of the commission of waste. Mitchell v. Billingsley, 17 Ala. 391; Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996; Warrior Coal & Coke Co. v. Mabel Mining Co., 112 Ala. 624, 20 So. 918; White v. Yawkey, 108 Ala. 270, 19 South. 360, Davis v. Miller-Brent Lbr. Co., 151 Ala. 580, 44 So. 639; Cosdin v. Williams, 151 Ala. 592, 597, 44 So. 611; Southern Ry. Co. v. Cleveland, 169 Ala. 22, 26, 53 So. 767; Foust v. Kinney et al., 80 So. 474; 4 Sutherland, Damages (4th Ed.) § 1019. See, also, Young v. Extension Ditch Co., 13 Idaho, 174, 89 P. 296; Boise Valley Const. Co. v. Kroeger, 17 Idaho, 384, 402, 105 P. 1070, 28 L.R.A. (N.S.) 968; Chicago, B. & Q.R.R. Co. v. Emmert, 53 Neb. 237, 73 N.W. 540, 68 Am.St.Rep. 602; Fremont, etc., R.R. Co. v. Harlin, 50 Neb. 698, 70 N.W. 263, 36 L.R.A. 417, 61 Am.St.Rep. 578; Rowe et al. v. Shenandoah Pulp Co., 42 W.Va. 551, 26 S.E. 320, 57 Am.St.Rep. 870.

From the cases, a statement of the measure of damages to real estate may be said to be: (1) If the land is taken, or its value totally destroyed, the owner is entitled to recover the market value thereof at the time of the taking or destruction, with legal interest thereon to the time of the trial. (2) If the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the market value of the land at the time immediately preceding the injury and the market value of the land in its immediate condition after the injury, with legal interest thereon to the time of the trial. (3) If the land is temporarily, but not permanently, injured, the owner is entitled to recover the amount necessary to repair the injury or to put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial. 6 Thompson Com.Law of Neg. §§ 7228 7229; Abercrombie & Williams v. Windham, 127 Ala. 179, 28 So. 387; A. & B.A.L. Ry. v. Brown...