Gosdin v. Williams
| Decision Date | 02 July 1907 |
| Citation | 44 So. 611,151 Ala. 592 |
| Parties | GOSDIN v. WILLIAMS ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coosa County; A. H. Alston, Judge.
Action by Mrs. S. F. Gosdin against A. J. Williams and others. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.
D. H Riddle, for appellant.
This is an action by Mrs. S. F. Gosdin against A. J. Williams, Davis Ogburn, and James McLeod for trespassing on certain lands of the plaintiff "by running drays across the lands and cutting them up." The case was commenced in the justice court, and in that court the plaintiff recovered judgment against the defendants Williams and Ogburn, and they appealed to the circuit court. In the circuit court, at the conclusion of the evidence, the court, at the request of the defendants in writing, charged the jury affirmatively in their favor. A verdict was returned in favor of the defendants, and from the judgment rendered on the verdict the plaintiff took the present appeal.
We have not been furnished with a brief by the appellees, and must confess that we are unable to discover the theory on which the affirmative charge was given for the defendants. The evidence without conflict showed title and possession to and of the locus in quo in the plaintiff; and, if it should be conceded that it would be a good defense to show that defendants traveled only in a road that ran across plaintiff's land and which had been used by the public for 40 years, yet there is evidence in the record which not only tends to show that defendants traveled outside of that road with the drays, but that they made a new way on plaintiff's land, and in doing so cut trees 10 inches in diameter. But the strongest evidence in respect to the "old road" across the land being a public road by prescription is that given by Z. D. McCord for the defendants and it is apparent that all that he said may be true, and yet not be sufficient to overcome the presumption that the use of the road across the lands of the plaintiff was merely permissive. There is an absence of evidence to show that the road was legally established, either by an order of court or by dedication; and the mere use of land for the purpose of a road carries with it no presumption of adverse claim or claim of right to use it. Rosser v. Bunn, 66 Ala. 89; Harper's Case, 109 Ala. 66, 19 So. 901; Stewart v Conley, 122 Ala. 179, 27 So. 303; Trump v McDonnell, 120 Ala. 200, 24 So. 353; Whaley v. Wilson, 120 Ala. 502, 24 So. 855; Jones v. Bright, 140 Ala. 268, 37 So. 79; 22 Am. & Eng. Ency. p. 1200 (9); Id. p. 1220 (4); Id. p. 1221 (6).
If the plaintiff had notices posted on the land forbidding the use of the road or trespassing on the land, and it can be shown that the defendants saw the notices and understood them or read them, this is competent evidence, both in respect to the question of the use of the road being merely permissive and to the character of the trespass. Owen's Case, 74 Ala. 401; Watson's Case, 63 Ala. 20; Harper's Case, 109 Ala. 33, 19 So. 857; 22 Am. & Eng. Ency. 1224.
In this action it is of no consequence that the defendants did not know the land lines and were under the impression that they were on another's than the plaintiff's land. They might in good faith have believed the land they were on was Gilbert's land, and still they would be liable for all actual damages done by them to the plaintiff's land.
Whether or not damage resulted to the land by the acts of the defendants was a question to be determined by the jury, and to allow a witness to testify that the land was damaged would be the substitution of the opinion of the witness for the conclusion to be reached by the jury from facts which should be detailed by witnesses. Central of Georgia Ry. Co. v. Keyton (Ala.) 41 So. 918, and authorities there cited. The trial court may find a sufficient guide in ruling on evidence in respect to damages done the land in the case of Hames v. Brownlee, 63 Ala. 277.
The rule for the admeasurement of damages in trespass to realty when the injury is to the realty itself, is the difference in the value of the land before and after the trespass. Brinkmeyer v....
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Ex parte State
... ... State, ... 67 Ark. 598, 50 S.W. 554, 59 S.W. 529; 2 Ency. of Ev. 407 ... See, also, Phillips v. State, 161 Ala. 60, 49 So ... 794; Gosdin v. Williams et al., 151 Ala. 592, 44 So ... 611; Kelly v. State, 2 Ala.App. 103, 57 So. 78; ... Patton v. State, 72 So. 401; Shepherd v. Butcher ... ...
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Alabama Power Co. v. Thompson
...for trespass to real property, the measure of damages is the difference in the value of the land before and after the trespass. Gosdin v. Williams, supra; Craft v. et al., 209 Ala. 226, 95 So. 901. The adaptability of the property taken and injured, for a special purpose affecting its value......
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...or more." In the body of the opinion the same quotation is indulged as quoted above from Merchant v. Markham, supra. In Gosdin v. Williams, 151 Ala. 592, 44 So. 611, action was trespass to realty. The question was whether the road which the defendant traveled that ran across plaintiff's lan......
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