105 Ala. 549 | Ala. | 1894
This action was brought against the defendant, Brooks, appellee heré, by the appellant, Rogers, under the provisions of section 3296 of the Code. This is the second appeal in the case.
' The complaint avers that defendant willfully and knowingly, and without the consent of the plaintiff, cut down and destroyed a large number of trees and saplings on plaintiff’s land. It was held in the former appeal, that the complaint was properly filed to recover for the alleged statutory penalty.—Rogers v. Brooks, 99 Ala. 31. The statute prescribes among other things, that when any person willfully and knowingly cuts down, destroys or takes away trees or saplings on land not his own, without the consent of the owner of the land, he must pay the owner a prescribed sum for each tree or sapling so cut, destroyed or taken awa’y. The complaint in this case avers, that the damage alleged was done without the consent of the plaintiff. The only question now presented for review is : Upon whom does the burden rest, upon the plaintiff, to prove she gave no consent, or, upon defendant to prove she gave it, for the cutting of the trees ?
The general rule, as stated in our decisions is, that the
In respect to this general rule referred to above, that negative averments need not be proved, Mr. Greenleaf says: “One class of exceptions (to this rule) will be found to include those cases in which the plaintiff grounds his right of action upon a negative allegation,” and where, of course, the establishment of this negative is an essential element in his case, and he brings as an illustration of the rule a prosecution for a penalty given by statute, and states : ‘ ‘If the statute, in describing the offense, contains negative matter, the count must contain such negative allegation, and it must be supported by prima facie proof. Such is the case in prosecutions for penalties given by statutes, for coursing deer in inclosed grounds, not having the consent of the owner, (Rex v. Hazy, 2 C. & P. 458); or for cutting trees on lands not the party’s own, or taking other property not having the consent of the owner, (Little v. Thompson, 2 Greenl. 228); or for selling as a peddler, goods not of the produce or manufacture of the country. (Smith v. Moore, 6 Greenl. 274).” 1 Greenl. Ev., § 78.
The case of Little v. Thompson, 2 Greenl. 228, cited
It was necessary, then, it seems, for plaintiff to have made prima facie proof, that the alleged depredation to the timber was done without her consent. She proved by a written lease which she read in evidence, that defendant had rented a large tract of land from her for five years, and in the lease, he bound himself not to cut down or destroy any of the wood or timber on said premises, except such as were absolutely necessary for plantation purposes — for fuel, repairs and improvements tobe used or placed thereon — and that even for these purposes, he would only cut or take the timber or wood growing on specified localities. She then proved by her witnesses, that defendant had, on different occasions, within twelve months before the bringing of this suit, cut trees in large numbers and sold wood in large quantities off of the portions of said leased premises, on which defendant was prohibited by the terms of said lease, from cutting timber and wood. This evidence, we apprehend, was sufficient prima facie proof, in-the absence of counter testimony, to afford ground for presuming that the allegation in the complaint, that the timbers were cut and destroyed without plaintiff’s consent, was true, devolving on defendant, the burden of showing, that he did it with her consent. To show this, he introduced evidence, as the bill of exceptions states, to show that the plaintiff had seen the cutting going on, on one or two occasions, and had raised no objection thereto. Here, then, was evidence tending to show that the cutting was done with and without plaintiff’s consent, in which state of case, the
Reversed and remanded.