Long v. Cummings
| Court | Supreme Court of Alabama |
| Writing for the Court | DENSON, J. |
| Citation | 47 So. 109,156 Ala. 577 |
| Parties | LONG v. CUMMINGS. |
| Decision Date | 18 June 1908 |
47 So. 109
156 Ala. 577
LONG
v.
CUMMINGS.
Supreme Court of Alabama
June 18, 1908
Appeal from Circuit Court, Henry County; A. A. Evans, Judge.
Action by J. E. Cummings against J. B. Long. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
W. L. Lee and William C. Oates, for appellant.
P. A. McDaniel, for appellee. [47 So. 110.]
DENSON, J.
This is an action of debt, brought under section 4137 of the Code of 1896, to recover the penalty prescribed by that section for cutting down trees by any person "on land not his own, willfully and knowingly, without the consent of the owner of the land." This section is amended by an act approved October 6, 1903, but the amendment does not affect any question involved here. Under this statute, it will be observed, the right of action is given to the owner of the lands; and it is wholly immaterial whether he was in possession at the time the cutting was done or not. Rogers v. Brooks, 105 Ala. 549, 17 So. 97; Gravlee v. Williams, 112 Ala. 539, 20 So. 952; Higdon v. Kennemer, 120 Ala. 193, 24 So. 439. But it is a valid defense to the action that the defendant, when he cut the trees, did so under the honest belief that the land was his own. Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 So. 266; Glenn v. Adams, 129 Ala. 189, 29 So. 836; White v. Farris, 124 Ala. 461, 27 So. 259, and cases cited in the opinions. In White v. Farris, supra, it is distinctly held that, the statute being strictly penal, it was not "the intention and purpose of the Legislature, in its enactment, to give such penalty as against one in the actual adverse possession of the land under color of title bona fide claiming to own the same."
The undisputed facts of this case show that the plaintiff is the owner of the N. 1/2 of the N.E. 1/4 of section 13, township 7, range 28, in Henry county, and that the defendant is the owner of the S. 1/2 of the S.E. 1/4 of section 12 in the same township and range; the plaintiff's land being located immediately south of the defendant's. In other words, their lands are separated by the section line which runs east and west between sections 12 and 13. Each of them claimed to own up to the section line; but there is a dispute as to the exact location of that line. Two surveys were made to ascertain and locate the line; one having been run by County Surveyor Craven 35 years before the trial, and the other by County Surveyor Roberts 15 years before the trial. The two...
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Alexander v. Smith, 3 Div. 212
...without reaching the conclusion that the real controversy between the parties is the location of the boundary line.' Long v. Cummings, 156 Ala. 577, 580, 47 So. 109, 110. plaintiff failed to prove such a cutting as would authorize a recovery of the penalty provided by said section of the Co......
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Vick v. Tisdale
...follows that there would exist a defense to § 272. Glenn v. Adams, supra; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Long v. Cummings, 156 Ala. 577, 47 So. 109. The court in Ellard stated that, 'Honest belief, honestly entertained, in cutting, etc., timber, is inconsistent with the design......
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Peterson v. Hamilton, 1 Div. 597
...by Title 47, § 272, is not recoverable by the true owner of the property.' White v. Farris, 124 Ala. 461, 27 So. 259; Long v. Cummings, 156 Ala. 577, 47 So. 109; Stockburger Bros. v. Aderholt, 195 Ala. 56, 70 So. 157; Wiley v. Wilson, 284 Ala. 614, 617, 227 So.2d Let us review the evidence ......
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Ward v. Lane, 486
...the rule declared in Payne v. Crawford, 102 Ala. 387, 14 So. 854, Hunnicutt v. Peyton, 102 U.S. 364, 26 L.Ed. 113, and Long v. Cummings, 156 Ala. 577, 47 So. 109, we are of the opinion that the record affirmatively shows that the plaintiff obtained, from each witness to whom he propounded t......
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Alexander v. Smith, 3 Div. 212
...without reaching the conclusion that the real controversy between the parties is the location of the boundary line.' Long v. Cummings, 156 Ala. 577, 580, 47 So. 109, 110. plaintiff failed to prove such a cutting as would authorize a recovery of the penalty provided by said section of the Co......
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Vick v. Tisdale
...follows that there would exist a defense to § 272. Glenn v. Adams, supra; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Long v. Cummings, 156 Ala. 577, 47 So. 109. The court in Ellard stated that, 'Honest belief, honestly entertained, in cutting, etc., timber, is inconsistent with the design......
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Peterson v. Hamilton, 1 Div. 597
...by Title 47, § 272, is not recoverable by the true owner of the property.' White v. Farris, 124 Ala. 461, 27 So. 259; Long v. Cummings, 156 Ala. 577, 47 So. 109; Stockburger Bros. v. Aderholt, 195 Ala. 56, 70 So. 157; Wiley v. Wilson, 284 Ala. 614, 617, 227 So.2d Let us review the evidence ......
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Ward v. Lane, 486
...the rule declared in Payne v. Crawford, 102 Ala. 387, 14 So. 854, Hunnicutt v. Peyton, 102 U.S. 364, 26 L.Ed. 113, and Long v. Cummings, 156 Ala. 577, 47 So. 109, we are of the opinion that the record affirmatively shows that the plaintiff obtained, from each witness to whom he propounded t......