Stamphill v. Bullen

• Decision Date: 17 May 1899
• Citation: 121 Ala. 250,25 So. 928
• Parties: STAMPHILL v. BULLEN.
• Court: Alabama Supreme Court

25 So. 928

121 Ala. 250

STAMPHILL v. BULLEN.

Supreme Court of Alabama

May 17, 1899

Appeal from circuit court, Franklin county; Thomas R. Roulhac Judge.

Action by William G. Stamphill against La Fayette Bullen to recover damages for trespass upon the plaintiff's land and cutting timber therefrom. The trial was had upon issue joined upon the plea of not guilty. The plaintiff, as a witness in his own behalf, testified that he owned a mill on or near Bear creek, in Franklin county; that the water used in running said mill flowed from an artificial mill race cut for that purpose through the N.W. 1/4 of section 26, township 7 range 15, in said county; that on the north side of said mill race, varying from 10 to 25 yards from the margin of said mill race, there was an artificial bank or levee, which had been thrown up for many years to prevent the overflow of water from the mill race; that said artificial embankment runs some distance down said mill race in a zigzag line approaching at some points to within a few yards of the mill race, and at other points being at a greater distance from the mill race; that the strip of land left between the margin of the mill race and this artificial levee or embankment was covered with trees of various kinds; that this strip of land was owned by the plaintiff, and it was for cutting trees therefrom that he now complains. The plaintiff further testified that, before the cutting of the trees complained of, he sold and conveyed to one Serena Bullen a tract of land off the N.W. 1/4 of section 26, township 7, range 15, north of said mill race, and the southern boundary of the tract so sold and conveyed to Serena Bullen was the "bank of said mill race," and was so described in said deed. The plaintiff offered to prove that he pointed out to said Bullen, in the negotiation for the sale, the artificial embankment or levee as the southern boundary of the land, and that it was agreed by and between him and Bullen that this embankment should be the boundary line between them. The defendant objected to this evidence upon the ground that the deed alone could be looked to to determine the boundary. The court sustained the objection, and refused to allow the witness to so testify, and to this ruling the plaintiff duly excepted. The plaintiff further testified that he never parted with the strip of land between the margin of the mill race and the artificial embankment, and that, while he was in possession thereof, the defendant, against his will and without his consent, entered upon said strip of land, and cut down many trees from said strip, causing the damages of which he now complains. The defendant offered in evidence a deed from the plaintiff to Serena Bullen. In this deed the land conveyed was described as follows: "A portion of the northwest quarter of section 26, T. 6, R. 7, in Franklin county, Alabama, commencing on said quarter at the northeast corner, thence south to Big Bear creek; thence down said creek to W. G. Stamphill's mill race, down said bank of said race to the section line, run north to section corner thence east to the commencing corner,-supposed to be fifty acres." The certificate of acknowledgment, which was signed by John B. Cox as notary public, was as follows "Personally appeared before me, J. B. Cox, a notary public in and for said county, Wm. G. Stamphill and Nancy Stamphill his wife who is known to me acknowledge before me that they signed the foregoing conveyance of the contence[?] of the foregoing deed on the day the bares date and the said Nancy Stamphill after being examined separately and apart by me seals signes and acknowledged the same on the same bares date." The plaintiff objected to the introduction of this deed in evidence upon the ground that it was not acknowledged as prescribed by law, nor was it proved to have been executed. The court overruled this objection, and allowed the deed to be introduced in evidence without further proof of its execution, and to this ruling the plaintiff duly excepted. The defendant then offered in evidence a deed from Serena Bullen and her husband, Robert Bullen, to the...