Jackson v. Bohlin

• Decision Date: 08 May 1917
• Docket Number: 1 Div. 219
• Citation: 16 Ala.App. 105,75 So. 697
• Parties: JACKSON et al. v. BOHLIN.
• Court: Alabama Court of Appeals

75 So. 697

16 Ala.App. 105

JACKSON et al. v. BOHLIN.

1 Div. 219

Court of Appeals of Alabama

May 8, 1917

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by C.W. Bohlin against Jos. H. Jackson and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The third plea was: That said defendants at the time of the matters complained of and prior thereto constituted the board of revenue and road commissioners of Mobile county. That on March 9, 1914, plaintiff appeared before them as such a board, and asked permission of said board to change the direction of the road on the north half of the north half of section 13, across from Union Church. That on March 16, 1914 plaintiff again appeared before them as such board, and asked that a road leading out of Grand Bay known as Union Church road be straightened so that same would follow the half section line as follows: (Here follows description of road to be changed). That said board, after a motion was duly made seconded, and adopted, ordered that said road be changed as requested by plaintiff. Defendant further alleges that subsequent thereto a committee composed of members of said board and by the authority of the said board visited said location of said road and reported back to said board that it was not to the public interest and welfare that said road be changed as requested by plaintiff, whereupon the board in regular session rescinded its former action, and notified plaintiff of its said action; that defendants further alleged that plaintiff subsequent to said notice placed a fence across said original road, and which said fence was removed by agents or employés of said board, by order of said board acting in its official and judicial capacity, wherefore these defendants say that they are not personally liable to plaintiff in any amount on account of said action, nor are they liable for the matters alleged in the complaint.

The oral charge of the court as to damages was as follows:

The court tells you as matter of law that the only damage which plaintiff can recover in this case is known as compensatory damages, that is, such damages as would put the land back in the condition it was in before the trespass alleged was committed; that is to say, he was entitled to more than nominal damages. He claims $500. You cannot go over this amount, and in assessing the damages you may take into consideration the value of the land, too.

Gordon & Edington, of Mobile, for appellants.

Harry T. Smith & Caffey, of Mobile, for appellee.

BROWN P.J.

The third plea was subject to the objection taken by the demurrers, that it does not show that the board of commissioners of roads and revenue of Mobile county had jurisdiction over the road in question, or colorable jurisdiction which fairly called for the exercise of judgment with respect thereto, and that the action of the board involved an affirmative decision that the board had jurisdiction of the subject-matter and of the person, and that the members of the board determined in good faith without malice, that the case presented called for the exercise of such jurisdiction. Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A. (N.S.) 164.

The plea was bad for another reason pointed out in the demurrers. It undertakes to answer the charge of trespass made by the complaint, without showing that the removal of the fence from the road was the only act of the defendants constituting the alleged trespass. A plea purporting to answer the whole complaint when the matter set up at most only answers a part of the complaint is bad. U.S. Fidelity & Guaranty Co. v Damskibsaktieselskabet Habil, 138 Ala. 348, 35 So. 344.

The evidence shows without dispute that one of the road supervisors, at the instance of one of the community, without making application to the commissioners, as required by section 5771 et seq. of the Code 1907, changed the road where it crossed the lands subsequently acquired by the plaintiff, locating the road as changed at some points 15 rods from the track of the old public road; that the change was made about the year 1909, or about five years before the alleged trespass. There was no evidence that the owner of the land at the time of the change consented or requested the change to be made. The defendants offered to show that the public generally used the road after its change for a period of six or seven years, and complain that the court refused to admit this evidence. The ruling was correct.

"In order to establish a highway by prescription it must appear that the use by the public has been adverse to the owner under claim of right and not by his permission for a period of 20 years or more. The mere use of lands for the purpose of a road carries with it no presumption of adverse claim or claim of right to so use it." Jones v. Bright, 140 Ala. 268, 37 So. 79; Whaley v. Wilson, 120 Ala. 502, 24 So. 855.

Justification under legal authority is not available as a defense to an action of trespass unless specially pleaded; but the defendant may show under the general issue, in mitigation of damages, that he was at the time of the trespass acting in good faith under what he considered legal authority. Stephenson v. Wright, 111 Ala. 579, 20 So. 622; Womack v. Bird, 51 Ala. 504; Id., 63 Ala. 500; W.U.T. Co. v. Dickens, 148 Ala. 484, 41 So. 469.

Therefore evidence showing or tending to show that the members of the board of commissioners of roads and revenue were acting officially in the matter was competent, and the court erred in sustaining the plaintiff's objection to the questions asked the witness Gaillard on cross-examination eliciting testimony that the commissioners in passing the resolution instructing the superintendent of roads to remove plaintiff's fence were in session and acting in their official capacity.

The court is of the opinion, however, that this error was rendered innocuous, as the undisputed evidence shows that they were acting officially in ordering the fence removed however, without jurisdiction of the subject-matter or the person. Furthermore, ...