Long v. Cummings

• Citation: 47 So. 109,156 Ala. 577
• Parties: LONG v. CUMMINGS.
• Decision Date: 18 June 1908
• Court: Supreme Court of Alabama

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.

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 surveys vary, leaving a space 50 yards in width between the lines run; and it was on the space between the surveyors' lines that the trees were cut. The proof without conflict shows that the Craven survey is south of the Roberts survey, and the contention of the plaintiff is that the Craven line is on his land and south of the true line; while the defendant's contention is that said Craven's survey marked the true section line.

It is impossible to read the evidence set out in the record without reaching the conclusion that the real controversy between the parties is the location of the boundary line. If the Craven survey marks the true line, the trees were cut on the N. 1/2 of the N.E. 1/4 of section 13; whereas, if the Roberts survey is the correct one, then such cutting was on the S. 1/2 of the S.E. 1/4 of section 12. And so the litigation is resolved into a contest between the parties as to their respective titles. But, if this is not true--if the testimony is not without conflict to the effect that the defendant, at the time the trees were cut, acted under the bona fide belief that they were on his own land, it very strongly tends to...