W.T. Smith Lumber Co. v. McKenzie

• Decision Date: 03 January 1952
• Docket Number: 3 Div. 585
• Citation: 55 So.2d 919,256 Ala. 496
• Parties: W. T. SMITH LUMBER CO. v. McKENZIE et al.
• Court: Alabama Supreme Court

Page 919

55 So.2d 919

256 Ala. 496

W. T. SMITH LUMBER CO. v. McKENZIE et al.

3 Div. 585.

Supreme Court of Alabama.

Jan. 3, 1952.

Calvin Poole, Greenville, for appellant.

Paul Hartley, Greenville, for appellees.

LAWSON, Justice.

This suit was filed in the circuit court of Butler County by Mrs. Evelyn M. McKenzie and three of her sisters against Irby Hinson and W. T. Smith Lumber Company, a corporation.

The original complaint contained three counts. The first count is in trespass and claims $2,000 damages for trespass on approximately 136 acres of land belonging to plaintiffs and for the cutting and removing of trees therefrom. The second count seems to be in trespass against Hinson and in case against the W. T. Smith Lumber Company. The third count of the complaint claims the sum of $185, statutory penalty for cutting certain trees from the lands of the plaintiffs.

On the day of the trial the complaint was amended by adding thereto Count A, which is against the W. T. Smith Lumber Company only and is in case. It claims $2,000 damages for the acts of the lumber company's agents, servants or employees in entering upon the plaintiffs' land, 136 acres more or less, and for cutting and removing trees therefrom. The defendant pleaded the general issue.

After the evidence was all in, plaintiffs amended the complaint further by striking Count 3 which, as above indicated, claimed the statutory penalty for cutting trees.

The case went to the jury on Counts 1, 2, and A. There was verdict for plaintiffs against the defendant W. T. Smith Lumber Company under Count A. The verdict was for $500. Its motion for new trial being overruled, W. T. Smith Lumber Company has appealed to this court.

We do not have any question presented on this appeal as to whether Count 2 of the complaint was bad for joining trespass and trespass on the case in the same count, or as to the right of the plaintiffs to claim against both defendants in Counts 1 and 2 and against only one defendant, the W. T. Smith Lumber Company, in Count A.

We see no necessity to set out here the evidence as it relates to the question of whether appellant's servants, agents or employees entered on the lands of plaintiffs and cut and removed trees therefrom. As to this point, the evidence was in sharp conflict and was for the jury's determination.

The difference in value before and after the damage is a proper basis for fixing the amount of damage when the damage includes the destruction of timber, whether the suit is in case or trespass. Alabama Great Southern R. Co. v. Russell, 254 Ala. 701, 48 So.2d 249, and cases cited.

The adaptability of the property taken of injured for a special purpose affecting its value is an element for the consideration of the jury in assessing the damages. Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974, and cases cited.

The evidence shows that not more than twenty-one trees were cut on the property of plaintiffs. The value of the trees so cut as timber was fixed at approximately $25. But testimony for plaintiffs, admitted in evidence without objection, was to the effect that their land was adaptable as a residential subdivision and at the time of the cutting, plaintiffs' purpose was to so use it. The evidence for the plaintiffs tends to show that the cutting of the trees damaged their property to the extent of $2,500.

At the time the trees were cut plaintiffs' property was used as farm land. It had not been subdivided, nor had plaintiffs had the property surveyed for that purpose. A few months after the trees were cut and prior to trial, a subdivision map was made showing streets and lots. The trial court permitted the introduction of this map in evidence over the objections of counsel for appellant. It is apparent from the record that the trial court admitted this map on the theory that it was admissible as tending to show the use to which the land could be put at the time of the trespass and it was limited to that purpose.

This action of the trial court is in accord with our recent holding in the case of Thornton v. City of Birmingham, 250 Ala. 651, 655, 35 So.2d 545, 547, 7 A.L.R.2d 773, where we said in part as follows: '* * Evidence of value of the property for any use to which it is reasonably adapted is, as already stated, admissible but the proof must be so limited and the testimony restricted to its value for such purpose. Of probative tendency on this issue is the offer of a proposed plan or a possible scheme of development, and the trial court so held, but it was not permissible to incorporate in such a plan the speculative price of the individual lots. * * *'

The surveyor who made the map testified as to its correctness. He was shown to have had many years experience as a surveyor. It was not error, therefore, to admit the map in evidence for the purpose to which it was limited, although there was no compliance with all the provisions of § 13, Title 56, Code 1940. Hill v. Johnson, 214 Ala. 194, 106 So. 814, and cases cited.

The map being in evidence, it was permissible for the witnesses for plaintiffs to refer thereto in connection with their testimony as to the value of the property before and after the trees were cut. The evidence for the plaintiffs as to the value before and after the cutting was, of course, based on the opinion of the witnesses, as testimony of value of property can only be a matter of opinion. Curtis et al. v. Hunt, 158 Ala. 78, 48 So. 598.

At the time of the alleged entry and cutting of the trees, all of the plaintiffs owned the land and the trees thereon as tenants in common. Subsequent thereto and prior to the time this suit was filed, they divided the property among themselves in such a manner that the plaintiff Mrs. Evelyn M. McKenzie became the owner of that part of the...