Postal Telegraph Cable Co. v. Lenoir

• Decision Date: 31 July 1895
• Citation: 107 Ala. 640,18 So. 266
• Parties: POSTAL TELEGRAPH CABLE CO. v. LE NOIR.
• Court: Alabama Supreme Court

18 So. 266

107 Ala. 640

POSTAL TELEGRAPH CABLE CO. v. LE NOIR.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Washington county; James T. Jones, Judge.

Action by Melinda L. Le Noir against the Postal Telegraph Cable Company to recover the statutory penalty for cutting down trees from the lands of plaintiff without her consent. There was judgment for plaintiff, and defendant appeals. Reversed.

The defendant pleaded the general issue and the following special pleas: "(2) For further answer to the complaint the defendant says it is, and was at the time of the alleged cutting, a corporation constructing a line of telegraph wires across the land from which the timber is alleged to have been cut, and cut said timber on the margin of a public or post road or public highway, along which said telegraph line was constructed. (3) For further answer to the complaint the defendant says that its agents, employés, and servants were not authorized by it to do the acts complained of in said complaint, as therein set forth." Issue was joined upon these pleas, and upon the trial of the cause, as is shown by the bill of exceptions, the plaintiff introduced evidence showing that she held the legal title to the lands upon which the trees alleged to have been cut were growing. The plaintiff, as a witness in her own behalf, testified as to the number of trees that had been cut, and that she had not given the defendant permission to cut them, nor had she authorized any one else to give permission; "that she did not see the agent or servants of the defendant cut the trees or saplings, nor did she know when it was done, except that it was done in the summer of the year 1893." The plaintiff introduced one John A. Green as a witness, who testified that, at the time that the telegraph line was erecting its line on the land, he saw a gang of men cutting down the trees and saplings for which this suit was brought and asked one of them what line of telegraph it was. The witness was then asked by the plaintiff, "What reply did the man so addressed make to the question as to what telegraph line he was erecting?" The defendant objected to this question because it called for hearsay evidence, and matters irrelevant and immaterial to the issue. The court overruled the objection, and the defendant duly excepted. The witness then answered that one of the gang answered that it was the Postal Telegraph Company. The defendant moved the court to exclude this answer upon the ground stated to the objection to the question, but the court overruled the motion, and the defendant duly excepted. The defendant introduced as a witness in its behalf one J. L. Grantham, who testified that he was the foreman of the defendant at the time of the construction of its line along the route through the land alleged to belong to the plaintiff; that his instructions from the company were not to construct its telegraph line over the lands of any person without first obtaining the consent of the owner thereof; that the instructions of the company to him, and to each of its employés in the construction of its line, were not to cut away trees or saplings from the lands of any person without first obtaining the consent of the owner or owners thereof. This witness was then asked by the defendant "if he did not get permission from S. P. Gray and others to construct the line of telegraph across their lands, and to cut down such trees and saplings as might be necessary for such purpose?" The plaintiff objected to this question on the grounds that the permission to go on the lands of others would not justify trespassing upon the lands of plaintiff. The bill of exceptions recites: "Counsel for the defendant then and there stated to the court that he expected to prove by such witness that he (witness) had obtained permission from the said Gray to go upon his lands and construct defendant's line thereon, and that the said witness had understood and believed, at the time that he was constructing said line on the land of the plaintiff, that he was in fact constructing the line over the lands of the said Gray. The court sustained the objection of the plaintiff stating that the facts stated by the defendant's attorney were not proven, and constituted no defense, and to this ruling of the court the defendant then and there excepted." This was substantially all the evidence in the case. There were many charges asked by the defendant, but it is deemed unnecessary to set them out in detail. There was judgment for the plaintiff, and defendant appeals, and assigns as error the ruling of the court upon the evidence and the refusal of the court to give the charges requested by the defendant.

Gregory L. & H. T. Smith, for appellant.

J. R. &amp Chas. W. Tompkins, for appellee.

HEAD J.

This is an action of debt brought by the appellee against the appellant to recover the...