80 So. 474 | Ala. | 1918
The trial was had on several counts of the complaint, declaring in trover, detinue, and trespass to personal and real property.
The judgment entry recites that to counts 3, 4, 5, 7, and 8, as amended, demurrer was sustained; yet it also thereafter recites that count 4 was amended, and that issue was joined "on counts 1, 2, 3, 4, and 6 of the complaint as amended." The effect of this recital is that such of the counts on which issue was joined were amended after demurrer had been theretofore sustained, yet the amendments (if made) to the amended counts to which demurrer was so sustained, or the original forms thereof (the one or the other), are not disclosed by the record. As to such ruling on demurrer there is nothing for review. *393
The ruling on demurrer to count 5 as amended was not reversible error, for the damages sought to be recovered by that count may have been shown and recovered under count 3; for this reason no injury resulted to the plaintiff. So, the damages sought by count 7 may have been shown under count 6. Ex parte Bricken v. Sikes,
The eighth count — trespass to realty — was substantially in statutory form. Code, § 5382, form 26, p. 1199; Travelers' Ins. Co. v. Whitman,
The cases cited by appellee, that the measure of damage is the actual damage done, are without application to the facts averred. White v. Yawkey,
Punitive damages may lie for a malicious trespass to lands; that is, for a trespass upon the real property of another, intentionally and purposely committed, in known violation of the owner's rights or immediate right to the possession, and without lawful excuse or justification. Such a trespass may warrant the finding that the same was maliciously done. Southern Ry. Co. v. McEntire,
As to the right of nominal damages to realty where no actual damage has resulted from the trespass, as for putting a fence or letting it stay on the land of another, or the ploughing up and cultivating the land of another, though the land be improved thereby, it has been held to be such an intrusion upon the possession that entitled the owner or party having the right to the immediate possession to nominal damages. Ashby v. White, 2 Ld. Raym. 938; 1 Salk. 19; 1 Smith's Lead. Cas. 268; Blafield v. Payne, 4 Barn. Adol. 410; Bower v. Hill, 1 Bing. New Rep. 549; Appleton v. Fullerton, 1 Gray 186; 1 Jaggard on Torts, 81, 82, 86; 2 Jaggard on Torts, 690; 1 Cooley on Torts, 84 (67); 2 M. A. L. 559 et seq. The right of recovery in such actions for trespass rests on the fact that "the right has been injured" and that there is no room for the maxim, "De minimis non curat lex." Hobson v. Todd, 4 T. R. 71; Clifton v. Hooper, 6 Q. B. 468. See, also, Pfeiffer v. Grossman,
"The law implies damage to the owner, and, in the absence of proof as to the extent of the injury, he is entitled to recover nominal damages. Especially is this the case, where the suit is brought for the purpose of settling a question of right." *394
Chief Justice Shaw said:
"If, for instance, the defendants used the land, for a right not granted, as for a place of deposit of goods, it was a violation of the right of the plaintiff as owner, it was in law a trespass, and, though the plaintiff sustained no actual or appreciable damages, still he was entitled to maintain the action, and have a verdict for nominal damages." Appleton v. Fullerton, 1 Gray 186, 194.
It was declared to be a trespass to enter upon the land of another without his consent to take one's own personal property in Agnew v. Jones, supra,
The instant parties had the right to have litigated the title or the right of possession to the property on plaintiff's lands, and not to have it taken by defendant in a manner that was "rude, wanton, insulting, or reckless, * * * after being forbidden to do so, by plaintiff's wife and minor son" — a taking well calculated to provoke a breach of the peace. Watson v. Scarborough,
There was reversible error in sustaining demurrer to the eighth count of the complaint on the grounds assigned.
The other questions reserved are not necessary for discussion, as they may not arise on another trial.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, SOMERVILLE, and GARDNER, JJ., concur.