Mizell v. Container Corp. of America
| Decision Date | 07 February 1986 |
| Parties | J.J. MIZELL, Jr. v. CONTAINER CORPORATION OF AMERICA. 84-177. |
| Court | Alabama Supreme Court |
Bryant F. Williams, Jr., of Williams & Lanier, Ozark, for appellant.
Boyd Whigham, Clayton, for appellee.
Plaintiff appeals from a summary judgment in favor of defendant Container Corporation of America (CCA) on plaintiff's claim for statutory damages for injury to trees.
On August 24, 1979, CCA purchased a tract of land located in Barbour and Dale Counties, which contained approximately 400 acres. In the deed to this tract, reference was made to a 1976 survey of the property by Veston Bush. CCA began clearing the property, relying upon the boundaries as determined by the survey.
Plaintiff, owner of a 100-acre tract of land adjoining the property of CCA, filed the present lawsuit against CCA and other parties unknown. The three-count complaint sought a determination that an ancient fence was the boundary line between the parties, compensatory damages for trespass to plaintiff's land, and statutory damages for injury to the trees in the disputed area.
The issue of the boundary line was tried to the court, which found that plaintiff had acquired title by adverse possession to approximately seven acres of land described in CCA's deed according to the Bush survey. CCA then filed a motion for summary judgment on the statutory damages claim under count three of the complaint. The trial court granted the motion for summary judgment on the ground that CCA entered the land and cut timber under a reasonable belief that it had title to the property. The summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P., and plaintiff appealed.
An action for statutory damages for destruction of trees lies against a person who cuts down or injures certain varieties of trees on land "not his own, wilfully and knowingly, without the consent of the owner" of the land. Code of 1975, §§ 35-14-1 and 35-14-2. Since the statutes authorizing the actionhave long been regarded as penal in nature, they are subject to a strict construction, and the requisite intent must be clearly shown before liability may be imposed. Clifton Iron Co. v. Curry, 108 Ala. 581, 583, 18 So. 554, 555 (1895).
The existence of a reasonable belief that the cutting is authorized or that the trees are on one's own property constitutes a defense to the action. Vick v. Tisdale, 56 Ala.App. 565, 568, 324 So.2d 279, 282 (1975). Moreover, such a belief, even if unreasonable, will preclude liability under these statutes unless the belief is "so patently unreasonable as to constitute a reckless disregard for the ownership of the trees." Id.
In Vick, the Court of Civil Appeals held that defendants were entitled to a directed verdict because there was no evidence that they willfully, knowingly, or recklessly cut plaintiff's trees. The court stated:
"The reliance upon a map of general use and notoriety in the county, even though out of date, without inspecting deeds and plats, indicates at best negligence on the part of defendant-appellants, but not of the magnitude sufficient to bring their actions within the statute." 56 Ala.App. at 568, 324 So.2d at 283.
Similarly, CCA argues that it cannot be held liable for statutory damages because it acted under a belief that the trees were on its own land and its reliance upon its deed and the Bush survey made this belief a reasonable one.
The evidence which distinguishes this case from Vick, however, is the fact that there was an ancient fence on the property cleared by CCA which, according to the trial court's finding, marked the true boundary. Although the location of the fence is difficult to determine from the record before us, it is clear from the following testimony of Ronnie Gardner, an employee of CCA who marked the boundaries of the property, that some kind of fence existed:
Clyde Gibson, an employee of CCA in charge of the clearing operation, also testified that there was evidence of a fence across the property which was continuous in some places and broken or in pieces in other places. Mr. Gibson estimated that no maintenance had been done on the fence for five to ten years.
Furthermore, both of these employees of CCA testified concerning CCA's policy regarding establishing boundaries to its property. Mr. Gardner stated as follows:
Similarly, Mr. Gibson testified as follows:
A fence is an "outstanding symbol of possession" which, regardless of property descriptions, may become a boundary if it is recognized as such for a certain length of time. Mardis v. Nichols, 393 So.2d 976, 978-79 (Ala.1981). In Louisville & Nashville Railroad Co. v. Hill, 115 Ala. 334, 348, 22 So. 163, 167 (1897), this Court held in a case seeking statutory damages for injury to trees that evidence that plaintiff's fence had been torn down was admissible to show that the entry onto plaintiff's land was made willfully and knowingly. In Wiley v. Wilson, 284 Ala. 614, 616-17, 227 So.2d 128, 130-31 (1969), this Court affirmed the trial court's determination that plaintiff had acquired title to disputed property by adverse possession despite defendant's removal of two fences erected by plaintiff and that defendant could be held liable for cutting trees on plaintiff's land.
In the present case, we conclude that CCA was not entitled to a judgment as a matter of law on the basis that its strict adherence to the Bush...
To continue reading
Request your trial
-
Cousins v. McNeel
...did not establish a reckless disregard for the ownership of the trees. In support of his argument, he cites Mizell v. Container Corp. of America, 486 So.2d 398, 399 (Ala.1986), in which our supreme court stated: “The existence of a reasonable belief that the cutting is authorized or that th......
-
Daniels v. Ward
...subject to a strict construction, and the requisite intent must be clearly shown before liability may be imposed. Mizell v. Container Corp. of America, 486 So.2d 398 (Ala.1986). Here, after the defendant moved for summary judgment, the plaintiff produced no evidence to support his position ......