Rogers v. Brooks

• Decision Date: 03 November 1892
• Citation: 99 Ala. 31,11 So. 753
• Parties: ROGERS v. BROOKS.
• Court: Alabama Supreme Court

11 So. 753

99 Ala. 31

ROGERS v. BROOKS.

Supreme Court of Alabama

November 3, 1892

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action by C. T. Rogers against J. D. Brooks to recover the penalty imposed by Code, § 3296, for willfully and knowingly cutting trees without the consent of the owner of the land. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Arrington & Graham, for appellant.

Richardson & Reese, for appellee.

THORINGTON J.

This action is based on the provisions of section 3296 of the Code, and was brought by appellant against appellee to recover the statutory penalty for willfully and knowingly cutting trees without the consent of the owner of the land. The complaint alleges appellant's ownership of the land specifies the kind of trees willfully and knowingly cut by defendant from the lands without plaintiff's consent, and also avers that defendant was at the time of the cutting in possession of the land as appellant's tenant. There was a demurrer to the complaint on the ground that it did not show plaintiff's possession of the lands or right of immediate possession at the time the trees were cut, or at the commencement of the action; the demurrer being predicated on the theory that the complaint is in trespass. The circuit court sustained the demurrer, plaintiff declined to amend, and, on judgment being rendered against him, prosecuted this appeal.

"The gist of an action of trespass is the injury done to the possession. To support it, the plaintiff must show that, as to the defendant, he had, at the time of the injury, rightful possession, actual or constructive. The general property draws to it the possession, if there be no intervening, adverse right of enjoyment. *** But if the general owner has parted with the possession, conferring on another the exclusive right of present enjoyment, retaining in himself only the right to take or reserve possession at some future time, or on the happening of some contingency or event in the future, his right of possession is in reversion, and he cannot maintain trespass for an injury to the property while the particular right of possession is continuing." Boswell v. Carlisle, 70 Ala. 244; 2 Greenl. Ev. (14th Ed.) § 616. The substance of the complaint or declaration in trespass is that the defendant has forcibly and wrongfully injured the property in the possession of the plaintiff, and under the general issue the plaintiff must prove that the property was in his possession at the time of the injury, and this rightfully, as against the defendant, and that the injury was committed by the defendant with force. 2 Greenl. Ev. § 613. In the case of Cooper v. Watson, 73 Ala. 252, this court said: "The doctrine seems well settled, upon principle and authority, that if the owner of the land be not in the actual possession, if he can show title to the thing severed from it only by showing title to the land, a personal action for the taking, conversion, or detention of such things will not lie. If he have the possession at the time of the surrender the rule is different. But if his possession is divested, if his right lie in entry, and the adverse possessor *** severs a tree or other thing from the land, the things severed are converted into chattels. But they do not become the property of the owner of the land. He is out of possession, and has no right to the immediate possession of such things, nor can he bring any action to recover them until he acquires possession." The doctrine laid down in this case was reaffirmed in Beatty v. Brown, 76 Ala. 267, which was an action of trespass based on the same statute under which the plaintiff in this action is proceeding, viz., Code, § 3296, and is also supported by the following authorities: Brothers v. Hurdle, 10 Ired. 490; Powell v. Smith, 2 Watts, 126; Armory v. Delamirie, 1 Smith, Lead. Cas. (7th Amer. Ed., Hare & W. notes,) 660.

According to the foregoing principles and authorities, possession by plaintiff of the land at the time of the trespass and of instituting the action is necessary in order to support it and furthermore, if trees or other things are severed from the land by an adverse holder, and thus converted into chattels, they are not the property of the owner of the land; he being out of possession, and not having the immediate right of possession. But the statute in a sense changes the...