Rosser v. Bunn & Timberlake

66 Ala. 89 | Ala. | 1880

STONE, J.

In the Code of 1876, section 2991, is the following language : “ Mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties at the time of suit brought, may be set off, one against the other, by the defendant or his personal representative, whether the legal title be in the defendant or not.” It will be observed that demands may be set off, one against the other, to the same extent that debts may be, with the single exception, that such demand, if it sound in damages merely, can not be the subject of a set-off. Demand, in this section, must mean more than the word debt. Otherwise, its employment was mere tautology, as the word debt had been employed, and would have covered the entire ground. “ Demand is a claim ; a legal obligation ; a word of art of an extent greater in its significance than any other word except claim." — Bouv. Die. “ A thing or amount claimed to be due.” — Web. Die. It is broad enough in its signification to take in all claims, deman dable or solvable in money. In Holley v. Younge, 27 Ala. 203, this court said: “ What we understand by a demand ‘ not sounding in damages merely,’ is one which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard. But where, as in case of a breach of marriage contract, an assault and battery, or other cases of the like nature, the demand is of a character which, under the rules of law, does not admit of a reduction to a certain money standard, there it sounds in damages merely.” This language was employed in reference to the very statute we are construing. In Gibson v. Marquis, 29 Ala. 668, the principle above stated was reaffirmed. See, also, Bell v. Thompson, 34 Ala. 633; Wood v. Fowler, 37 Ala. 55; Cage v. Phillips, 38 Ala. 382; Lang v. Waters, 47 Ala. 624; Eods v. Murphy, 52 Ala. 520; Sledge v. Swift, 53 Ala. 116.

The first píea of set-off was foi* entering on defendant Bosser’s land, without his consent, and cutting and carrying away timber, and hauling sand therefrom. Each of the injuries here complained of is a trespass; in part, quare clausura fregit, and, as to carrying away the timber, de bonis asportatis. In each form, the recovery is not confined to the actual injury done. "Upon a count for either, the jury, if the testimony justify it, may assess-punitive, or exemplary damages.—Mitchell v. Billingsley, 17 Ala. 391; Parker v. Mise, 27 Ala. 480; Sedgw. on Damages, 150 [134-51, 602-5 [530-4]. In Walker v. McCoy, 34 Ala. 657, the set-off relied on was damages claimed for a trespass de bonis asportatis. This court said : “ The defendant’s cause of action against the plaintiff was recoverable only in an action of trespass de bonis asportatis. The law does not prescribe or fix any measure of damages in that action. The plaintiff’s demand was, therefore, one sounding in damages merely. Eor his cause of action he had a right to demand, not only such special damages as he might prove, but also such vindictive damages as the jury might find.” The defense was disallowed. The ruling in that case is decisive of this, and the Circuit Court did not err in sustaining the demurrer to the first plea of set-off.

2. Under our liberal system of pleading, the averred facts set forth in the 2d and fid pleas of set-off present a subject-matter which is available as a defense in that form, under section 3551 of the Code of 1876. They constitute a demand for a fixed sum — a demand on which, when the facts on which it rests are ascertained, the law itself defines the measure of recovery. These pleas aver the trees were cut by plaintiffs on Bosser’s land, willfully and knowingly, without the consent of the owner of the land ; and this brings the averment within the letter of the statute.

3. The action for the recovery of these specific penalties, however, must be brought within one year from the time the iujury was committed. — Code, § 3554. The plaintiff replied the statute of limitations of one year, to these pleas of set-off; and there was issue on that replication, without testing its sufficiency on demurrer. — Code of 1876, § 2996; 2 Brick. Dig. 226, § 129. An issue of fact being thus formed, the question was, whether the injury complained of in the pleas of set-off was done more than twelve months before the action was brought. If it was, the replication to the pleas was sustained.—Mudge v. Treat, 57 Ala. 1.

Under the rules above declared, the Circuit Court did not err in the charge defining the statutory bar against .the claim pleaded in set-off.

4. The testimony on the question, whether the route, or way, over which the wood was hauled by Bunn and Timberlake, out of which the chancery suit grew, was a public highway or not, was in direct conflict. The testimony of plaintiffs’ witnesses tended to show" there had been a way open to the public as a highway, and so used, for near or quite fifty years. If this user had existed for twenty years of continuous use, the presumption would arise that the road had been established by law, or that it was dedicated to the public by the owner of the soil.—Wash-burn on Easements, 173 [126], et seq.; Gayethy v. Bethune, 7 Amer. Dec. 188; Turnbull v. Rivers, 15 Amer. Dec. 622; 14 Mass. 49; 3 McCord, 131; Lawton v. Rivers, 2 McC. 445—13 Amer. Dec. 741. In Baker v. Clark, 4 N. H. 380, the court said : “We entertain no doubt that a highway may be proved by long usage ; but a way, to become public, must be used in such a manner as to show that the public accommodation requires it to De a highway, and that it is the intention of the owner of the land to dedicate the way to the public. * '* In this case, there is no evidence that the road was ever opened, or made, or repaired. There was no attempt to offer any evidence which showed an intention in the owner of the land to dedicate the way to the public, or that public convenience required the way.”- — S. 0., 17 Amer. Dec. 428. See, also, Jones v. Percival, 5 Pick. 485; S. C., 16 Amer. Dec. 415, where it is said : “ A person does not have a right of way by prescription, by passing over the lands of another in all directions ; nor can a grant of such a way be presumed, however long continued.” Other witnesses in this cause testify there was no such public highway. Hence we say, the testimony on this question was in conflict.

In early settlements, when most lands are unreclaimed forests, paths and substitutes for roads will be marked out and followed, whenever public, or even private convenience, may call for them. This practice prevails largely, while the lands are yet the undisposed of public domain; and paths thus marked out and used, continue to be so used, until the wants of agriculture circumscribe this implied license of travel and transportation, and confine highways to fixed routes. We can not think such use, unmarked by any recognition of them as highways, not repaired or worked upon by the public, is either evidence of dedication, or the foundation of a prescriptive right to use such way for public travel or transportation. When lands are reclaimed, and such ways are left open for use, and are used by the public as highways, these acts may constitute the beginning of a right of prescription ; and, if. permitted to continue long enough, will raise the presumption of a grant, not to an individual, but to the public; and inasmuch as there is, in such case, no individual, or definable number of persons, in w'hose favor the presumption runs, or who can be designated as adverse holders, the statute of ten years’ adverse possession, which bars entry on lands, does not apply. There is no continuous adverse holding. It requires twenty years to perfect the presumption of grant in such a case. A presumption of dedication may arise in a shorter time, if positive acts, or clear circumstances justify it. Merely allowing the public to pass over unreclaimed wild lands, will not, however, raise the presumption of dedication.—Hoole v. Attorney-General, 22 Ala. 190; Sultzner v. State, 43 Ala. 24.

What we have said above, must be confined to cases in which the alleged road has not been established, or recognized, by any order of the Court of County Commissioners. If so established or recognized, they thereby become public highways, upon which the public have a right to travel; and such roads are under the superintendence of that court. Code of 1876, § 1619, et seq. There is no evidence in this-record that the alleged way across the lands of the appellant Rosser was ever established, or recognized, by any order of the Court of County Commissioners.

As we have said above, the testimony is in conflict on the question, whether in fact there was such public road across appellant’s lands. That disputed question of fact should have been submitted to the jury, with appropriate instructions. This y?as not done, and the omission is a marked error, pervading the charge given by the Circuit Court. The part of the affirmative charge first excepted to, ignores this material inquiry of fact, and declares an hypothesis on which plaintiffs were entitled to recover, without any reference to the character of the road. If, under the rules we have declared above, there was no public road across Rosser’s lands, then he had the undisputed right to interdict its use by plaintiffs, and such prohibition gave them no right of recovery. The Circuit Court erred in giving that part of the affirmative charge first excepted to. That portion of the affirmative charge second, excepted to, is objectionable for the same reason.

What we have said above will be a sufficient guide on another trial. This judgment takes effect as of January 18th, 1878.

Reversed and remanded.

Brickell, C. J., not sitting.