McConnell v. Free

• Decision Date: 21 April 1921
• Docket Number: 2 Div. 756
• Parties: McCONNELL v. FREE.
• Court: Alabama Supreme Court

89 So. 170

206 Ala. 83

McCONNELL v. FREE.

2 Div. 756

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.

Action by J.A. McConnell against J.S. Free for the penalty for the cutting of timber. Judgment for the defendant, and the plaintiff appeals. Affirmed.

Patton & Patton and Thomas F. Seale, all of Livingston, for appellant.

H.A. &amp D.K. Jones, of Tuscaloosa, for appellee.

McCLELLAN J.

This action, instituted by appellant against appellee, is to recover the statutory penalty provided in Code, § 6035, for wrongfully, willfully, and knowingly cutting trees and saplings belonging to the plaintiff. On trial by the court without jury, judgment was rendered for defendant. The defendant was the grantee in the plaintiff's timber deed conveying all merchantable standing timber measuring six inches and over in diameter eight inches from the ground, on the lands described in the instrument. The defendant set up widely separated mills and a commissary in the process of cutting and removing the timber thus granted. He desired to connect these mills, commissary, etc., by a telephone line but this conveyance contained no semblance or color of authority or grant to the defendant to erect on the land a telephone line, or an easement for telephone purposes, even if allied with the operations necessary to avail of the timber and related easement granted. The instrument did not assume to vest in the defendant any right to cut or remove any timber (other than that passing by the grant, etc.) to facilitate or make possible the erection or operation of a telephone line over the lands of the plaintiff. The verbal negotiations or agreement at one time in course or consummated between these parties with respect to a telephone line was but a license, revocable upon the pleasure of the plaintiff, licensor, supported by no consideration moving to the licensor. Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 188, 66 So. 50, and cases there cited. The defendant himself testified:

"I did not put the telephone along the place Mr McConnell and me had discussed putting it. I did not carry out my agreement. This line was put up for my exclusive benefit."

That the license indicated was revoked before some, if not all, of the cutting of trees and saplings--for the purpose of erecting the telephone line--was done, appears from the evidence beyond any fair doubt.

The defendant directed the erection of the telephone line, and so through his admitted agents or employees. In reference to plaintiff's statements to him in this matter he testified:

"I saw Mr. McConnell during the time the telephone was being erected at my commissary. One day he told me to stop working on the telephone which was on the right of way there. I told him at that time that I would

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