Western Union Telegraph Co. v. Dickens

• Decision Date: 06 June 1906
• Citation: 148 Ala. 480,41 So. 469
• Parties: WESTERN UNION TELEGRAPH CO. v. DICKENS.
• Court: Alabama Supreme Court

41 So. 469

148 Ala. 480

WESTERN UNION TELEGRAPH CO. v. DICKENS.

Supreme Court of Alabama

June 6, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by Charles C. Dickens against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The complaint in this case originally contained one count, and it was amended by adding the second count. It is in words as follows:

"Plaintiff claims of the defendant corporation one thousand dollars ($1,000.00) damages for a trespass by the defendant upon the property of plaintiff, a description of which is hereto attached, marked 'Exhibit A,' and made a part hereof, that portion of the same which lies adjacent to the roadbed of the Southern Railway Company, and which said lands belong to plaintiff, and for cutting timber thereon and breaking down the fences, piling brush and débris on and along plaintiff's fences, and doing other damage on, to wit, the 1st day of February, 1903.

"Count 2. Plaintiff claims of the defendant corporation one thousand ($1,000.00) dollars damages for a trespass by defendant upon a portion of the property, a description of which is hereto attached and marked 'Exhibit A,' and made a part hereof, which lies adjacent to the roadbed of the Southern Railway Company, and which said land belongs to the plaintiff, and for cutting timber thereon and breaking down the fences, and piling brush and débris on and along plaintiff's fences, and doing other damage on, to wit, February 1, 1903."

The defendant interposed demurrers to the second count as follows: "(1) Because the complaint does not aver with sufficient certainty which portions of the land described in Exhibit A to the original complaint were trespassed upon. (2) Because count 2 does not aver or show which portion of the lands described in Exhibit A to the original complaint lie adjacent to the roadbed of the Southern Railway Company. (3) Because said count does not show or aver how much land, or how wide a strip of land, lying adjacent to the railroad of the Southern Railway Company, was trespassed upon." The demurrers were overruled.

The defendant interposed the following pleas to the complaint as amended: (1) General issue; (2) That the plaintiff was not the owner of all the land for a trespass to which the action was brought; (3) That before the happening of the matters and things alleged in the complaint this defendant had permission to enter upon and construct its line of telegraph along and across the lands described in the complaint, which permission was granted by the Southern Railway Company, a corporation to this defendant, and said Southern Railway Company was duly authorized to give said permission to this defendant.

Plaintiff demurred as follows: To second plea: "It does not undertake to answer the whole complaint and is not pleaded to the whole complaint. Said plea only denies that the plaintiff owns all the lands in question, and does not deny that plaintiff owns the lands trespassed upon. Said plea sets up a defect in plaintiff's title, and is no answer to an action of trespass, which is an injury to the possession and not to the title." And to the third plea: "Because it does not appear from said plea that the authority of the Southern Railway to grant permission was an authority from the plaintiff. Because the authority alleged in said plea to enter upon and construct its lines along and across said lands did not justify the cutting of timber and the destroying of fences as alleged in the complaint. Because no privity is shown between the plaintiff and the said Southern Railway Company.

These demurrers were sustained, and defendant granted leave to plead over. The defendant filed the fourth plea, which was in effect the same as the first plea, except that it attempted to set up a privity between plaintiff and the Southern Railway, through a contract made by plaintiff with the Mobile & Birmingham Railroad Company for a spur track and the right of way for such track over the lands alleged to have been trespassed upon, and the fact that plaintiff's fences were on a part of this right of way, and a subsequent purchase by the Southern Railway of the rights, franchises and property of the Mobile & Birmingham Railroad Company. Plea 5 was filed, and, in addition to what was stated in 4, set out the contract pleaded in 4 in full. Demurrers were sustained to all these pleas, and trial was had on the general issue. The other facts necessary to a proper understanding of the opinion are set out therein.

The court refused the following charges asked by the...