Louisville & N.R. Co. v. Hill

• Decision Date: 26 May 1897
• Citation: 115 Ala. 334,22 So. 163
• Parties: LOUISVILLE & N. R. CO. v. HILL ET AL.
• Court: Alabama Supreme Court

22 So. 163

115 Ala. 334

LOUISVILLE & N. R. CO. v. HILL ET AL.

Supreme Court of Alabama

May 26, 1897

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

Action by Nina Hill and others against the Louisville & Nashville Railroad Company. There was judgment on a verdict for plaintiffs, and defendant appeals. Affirmed.

There were six parties plaintiff, five of whom sued by their next friend, Emma K. Hill, their mother.

The complaint south to recover from the defendant the penalty given by section 3296 of the Code of 1886 for willfully and knowingly, without the consent of the plaintiffs, cutting down and destroying certain trees, designating the number character and kind of trees. The defendant pleaded the general issue, and a special plea in which it set up that the title to the lands from which the trees were cut, was in one Mrs. Madge Lane, who acquired the same through a conveyance from the plaintiffs. To this special plea the plaintiffs demurred upon the ground that it was shown that the title to the land was conveyed to Mrs. Lane after the cause of action had accrued to the plaintiffs. This demurrer was sustained and the cause was tried upon the general issue.

On the trial of the cause, it was shown that the plaintiffs were the children and only heirs at law of John W. Hill, deceased, and that at the time of his death, John W. Hill owned and was in possession of the land upon which the trees were situated and that he had obtained the land by conveyances from others who had owned and held it for a number of years.

The testimony for the defendant tended to show that the cutting was done through one J. P. Hagan, who was the section foreman upon the part of the defendant's railroad which ran near said land; that the land adjoined the right of way of the defendant's road; and that Hagan obtained the consent of Mrs. Emma K. Hill, the widow of John W. Hill for him to cut the trees in controversy. Upon the examination of Hagan as a witness, he was asked the following question: "State whether or not it was in pursuance of the authority given you by Mrs. Hill that you cut them." The plaintiffs objected to this question, the court sustained the objection, and the defendant duly excepted.

Upon the defendant's offering to show that the estate of John W. Hill, deceased, was insolvent, and that there was an allotment of homestead exemption to the widow and her minor children, the plaintiffs objected to such evidence upon the ground that it was immaterial and irrelevant. The court sustained the objection, and the defendant separately excepted to each of such rulings of the court. The facts pertaining to the other rulings of the court upon the evidence are sufficiently shown in the opinion.

Upon the introduction of all the evidence, the court at the request of the plaintiffs gave to the jury the following written charges:

(3) "The widow of John W. Hill, as such, had no power or right to give consent to the cutting of the timber, and the defendant is held to have known it as a matter of law, and if the widow ever gave any consent the plaintiffs cannot be affected by it."

(7) "If through carelessness or negligence, the section foreman was ignorant of the title of the plaintiffs in the land, where the timber was cut, then he acted knowingly in cutting the trees and saplings; and he acted willfully, if he voluntarily and deliberately, cut the trees and saplings knowingly; and if he was an agent of the defendant, and cut the trees or saplings within the range of his general employment, and did not have the consent thereto of the plaintiffs, then you would find a verdict for the plaintiffs for the value of any trees or saplings respectively described in the complaint cut by him or under his orders, the value fixed by law."

The defendant separately excepted to the court's giving each of these charges, and also separately excepted to the court's refusal to give each of the following written charges requested by it:

(1) "If the jury believe the evidence they will find for the defendant."

(2) "The statute under which this action is brought, is a penal statute and must be strictly construed. The complaint charges that the defendant 'willfully' cut the trees and saplings on land belonging to the plaintiffs. In order for plaintiffs to recover, it is necessary that they prove this averment to your reasonable satisfaction; otherwise plaintiffs are not entitled to recover. I charge you as matter of law, that the word, 'willfully,' when used in a penal statute, means 'purposely, with evil intent, maliciously.' Therefore unless you believe from the evidence that the defendant purposely or with evil intent, or maliciously, cut down or destroyed trees and saplings on land belonging to the plaintiffs, then your verdict should be for the defendant."

(3) "Under the law, gentlemen of the jury, Mrs. Emma K. Hill, the widow of John W. Hill, was a tenant in common with the plaintiffs in this case, and as such, she had the right to exercise dominion and ownership over the whole property, and if you believe from the evidence that she consented for the defendant to cut the trees and saplings mentioned, then your verdict should be for the defendant, the defendant not being liable in this action."

(4) "The plaintiffs cannot recover in this suit, unless they prove to your reasonable satisfaction that defendant knowingly and willfully cut and destroyed the trees and saplings mentioned; and if you believe from the evidence, that defendant cut or destroyed said trees under the belief and opinion that it had permission to do so, then defendant is not liable and your verdict should be for the defendant."

(5) "The railroad company is not liable in this action for any trees or saplings cut by Coleman Harris or by Hardle Malone, in pursuance of and direction or permission given by Mr. Hagan."

(8) "Emma K. Hill was a joint tenant with the plaintiffs in this case. As such, she had the right to exercise authority and control over the whole land. Therefore, if you believe from the evidence, that she gave defendant permission to clear said land for the distance of fifty feet from the center of the track, and that in pursuance of such permission, said trees were cut, defendant is not liable in this action and your verdict should be for the defendant."

(9) "Emma K. Hill is a party plaintiff in this case."

(10) "The duty of Hagan, the section foreman, was to keep the track and right of way in proper condition. If you find from the evidence that he cut trees and saplings that were not on the right of way the defendant would not be liable therefor."

(11) "This is an action of debt, and it is admitted that Edgar J. Smith was the administrator of the estate of John W. Hill, at the time the trees and saplings are shown to have been cut, and at the time of the institution of this suit. This action should, therefore, have been brought in the name of said Smith, as administrator, instead of plaintiffs in this case."

(12) "Plaintiffs must prove with certainty the averments of the complaint. There is no evidence before you, that defendant cut down and destroyed seventeen oak trees as averred in the complaint."

(13) "The plaintiffs have averred that the defendant willfully and knowingly cut and destroyed twenty-one hickory trees. The evidence before you does not show that this averment is true."

(14) "Unless you believe from the evidence that defendant knowingly and willfully cut and destroyed fifteen sycamore trees, your verdict should be for the defendant, as to the sycamore trees, not shown to your reasonable satisfaction, to have been cut by the defendant."

(16) "If you believe from the evidence that the trees and saplings in "question were cut by Hagan, the section foreman, under the honest impression that he had permission from Mrs. Emma K. Hill to cut said trees and saplings, then your verdict should be for the defendant."

(17) "The plaintiffs cannot recover in this case, if you believe from the evidence that the defendant cut the trees and saplings in controversy under the honest belief and impression that it had permission from Mrs. Hill to cut the same, given by her to Clark and Hagan or to Hagan alone."

(20) "You cannot find for the plaintiffs unless you believe that the averments of the complaint have been proven to your satisfaction beyond a reasonable doubt."

Charges numbered 21 to 39, inclusive, of the defendant's series were instructions that there was no evidence before the jury of a specified number of the different kinds of trees and saplings alleged in the complaint to have been cut by the defendant. Each of these charges was also refused, and the defendants separately excepted to each refusal.

There were verdict and judgment for the plaintiffs, assessing their damages at $980. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos. G. Jones, for appellant.

McClellan & McClellan, for appellees.

HARALSON J.

It is not pretended that the defendant railroad company had ever condemned, paid for or had a grant of land in any form, for its right of way at the point, where the timbers grew, for the alleged cutting and destruction of which this suit was brought. Its roadbed is held alone by prescriptive right.

The plaintiffs are the children and only heirs at law of John W Hill, who died intestate in March, 1894, and administration on his estate was granted to Edgar Smith in May following. He was the undisputed owner of the land at the date of his death. He bought the lot, as appears, in 1888, and he, and those from whom his title came, had been in possession and ownership of the same, for a great number of years. There is no dispute as to his exclusive...