Riggin v. Hogg

• Decision Date: 15 May 1919
• Docket Number: 7 Div. 961
• Citation: 82 So. 341,203 Ala. 243
• Parties: RIGGIN v. HOGG et al.
• Court: Alabama Supreme Court

82 So. 341

203 Ala. 243

RIGGIN v. HOGG et al.

7 Div. 961

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.

Trespass by John F. Hogg and others against Henry Riggin. Judgment for plaintiffs, and defendant appeals. Affirmed.

Anderson C.J., and McClellan, J., dissenting.

Embry &amp Embry, of Ashville, and M.M. Smith, of Pell City, for appellant.

Harsh Harsh & Harsh, of Birmingham, and W.A. Starnes, of Pell City, for appellees.

MAYFIELD J.

The action was by appellees against appellant and was in trespass. The complaint contained several counts. Some of the counts sought a recovery as for the statutory penalty of $10 for cutting or destroying trees, saplings, etc., growing on certain lands described in the complaint. There were two counts in trespass quare clausum fregit, as to lands described in the complaint. The trial resulted in a verdict and judgment for plaintiffs on the fifth count, which was one of the counts in trespass quare clausum fregit.

The record contains errors, but the most serious ones are waived, not assigned, or not properly presented for our review. The most serious error is the total absence of proof as to the proper measure of damages under the count on which the jury found their verdict. There was evidence as to the measure of damages under the counts to recover the statutory penalty, and that would also measure the damages, if there had been a count in trover or trespass de bonis asportatis, but there was no such count.

The count on which the verdict was alone based is to recover damages as for injury to the lands, and not as for the value of timber or other parts of the realty severed therefrom. All of the evidence as to damages went to show the number and size of the trees severed from the land, the amount of timber taken from or destroyed on the land, and the value thereof, and not the value of the land before and after the trespass, with and without the timber thereon.

The damages claimed in this count is injury done to the land, in consequence of the trespass described and complained of, and not the value of the timber or other property severed from the freehold. These actions of trespass quare clausum fregit and de bonis asportatis are separate and distinct, though they relate and refer to the same wrongful acts, and the same land, if the property is severed from the freehold. In the case of Davis v. Miller-Brent Lumber Co., 151 Ala. 580, 587, 44 So. 639, 641, it was said:

"The only count in the complaint is for trespass quare clausum fregit, and not for trespass de bonis asportatis. Hence the value of the timber had nothing to do with it, but the measure of damages was the injury to the land, or, in other words, the difference between the value of the land before and after the trespass. White v. Yawkey, 108 Ala. 270, 274, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159; Warrior Coal & Coke Co. v. Mabel Mining Co., 112 Ala. 624, 626, 20 So. 918; Brinkmeyer et al. v. Bethea, 139 Ala. 376, 378, 35 So. 996."

The mere fact that it is alleged in the complaint that timber was cut, injured, and removed from the land does not constitute a claim for damages as for the value of the timber. It is, as pointed out in the authorities, a mere description of the nature and character of the trespass to the land.

This question, however, is not so presented as to call for a reversal of the judgment. No objection was taken as to the evidence, the verdict, or judgment on this count, and there was no motion for a new trial, and no requested charges seeking to raise this question. It may be that Mrs. Adam Powe has no such interest in the land as will authorize her to recover in this action. The record, however, does not make this question certain. It may be that she inherited the interest of the child of her husband; if so, this would make her a tenant in common with the other plaintiffs, if she did not so inherit, it is not certain that she could maintain a joint action with the heirs of the deceased husband as to this land. As to this, however, we do not now decide, as the evidence is not certain or full as to this feature of the case.

There was no error in allowing Mrs. Powe to testify that she, her children, and her husband were in possession of the land, and claiming to own it, from the time the husband purchased it until the time the husband purchased it until the time of trial. These were facts as to which she was shown to be competent to testify.

There was no error in allowing the surveyor to testify that he surveyed the land claimed by the plaintiffs. Nor was there error in allowing testimony that the surveyor had the deed when he surveyed the land, and called attention to the fact of the peculiarity in the description of the land. There was no error in allowing proof of the fact that the land in question was known in the community as the Hogg land. Of course such proof is not admissible to prove adverse possession, but it is admissible to show notoriety of the possession--that the possession was open, notorious, etc. There was no offer to limit such proof to such purpose. The objections were general. It is impossible for us to know whether or not there was error in admitting the deeds or other written instruments in evidence, because the deeds, instruments, or copies thereof are not before us.

The irregularity in the description as it is made to appear by recitals in the bill of exceptions was not sufficient to exclude the deed. If the description was as contended, it did describe a part of the land in question;...