Oswalt v. Smith

• Decision Date: 03 April 1893
• Citation: 12 So. 604,97 Ala. 627
• Parties: OSWALT v. SMITH.
• Court: Alabama Supreme Court

12 So. 604

97 Ala. 627

OSWALT v. SMITH.

Supreme Court of Alabama

April 3, 1893

On rehearing. Granted.

STONE C.J.

The present suit is an action for alleged trespass on land, and cutting and removing trees therefrom. The lands of plaintiff and defendant were contiguous, separated only by a government survey line extending east and west, but not clearly marked or established. The facts were simple, and are undisputed. One Copeland was engaged in the business of manufacturing timber into staves. On the adjoining lands of the two parties to this suit was a body of land on which was standing timber adapted to the business of stave making. Smith contracted with Copeland to sell to him, at an agreed price per tree all the timber on his land that was suited to the business. In making the contract, Smith informed Copeland "that he did not know where the lines of the land ran, but that one J F. Chesson did know the line between his and Mrs Oswalt's land; that he could get Chesson to point out the line to him, and that he could take the trees up to the line that Chesson would point out." Chesson did point out to Copeland what he represented as the dividing line, and Copeland cut and used timber up to that line. He (Copeland) paid Smith the agreed price for all the trees he so cut and used. It is not claimed or pretended that Smith knew where the true dividing line ran, or that he was guilty of intentional misrepresentation when he represented that Chesson could point out the true line. Nor it is proved or claimed that, when Copeland paid him for the trees, he (Smith) knew that any of them had been cut from Mrs. Oswalt's land. The only charge made against Smith is that he referred Copeland to Chesson for information as to the true dividing line, and that Chesson, through mistake or otherwise, located the line at the wrong place. The most that can be predicated of what he said to Copeland is that he made a mistake-an innocent mistake, so far as we can perceive-when he said, if he (Copeland) would call on Chesson, the latter could point out the true line. Nor it is denied, so far as this record informs us, that Chesson failed to point out the true dividing line; that Copeland, acting on his information, cut and removed some 70 trees from Mrs. Oswalt's land, and paid Smith the agreed price for the trees so cut and removed. The question is, will trespass quare clausum fregit lie on these plain, undisputed facts?

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