62 So. 874 | Ala. | 1913
— This was an action of trespass quare clausum fregit. The alleged trespass was that the defendant, appellant here, had cut down an embankment on the plaintiffs’ land to enlarge or improve its right of way. The defense was, practically speaking, that the embankment cut down was the property of the defendant and constituted a part of its right of way, and that it was in the possession thereof, as a part of its right of way, at the time of and before the commission of the alleged trespass. So the real dispute was as to who was in the possession of the land on which the alleged trespass was committed.
There was no error in sustaining the demurrer to the plea in abatement of a former suit pending. The plea, at best, alleged the pendency of'a suit in equity. This, as a rule, is not a good plea in abatement of an action in a court of law. The remedy in such cases is to apply to the court of equity to require the plaintiff to- elect as to which action or suit he will first prosecute to judgment. It was at an early date said by the Supreme Court of Massachusetts (Colt v. Partridge, 7 Metc. [Mass.] 570-576) : “The pendency of a bill in equity has not usually been considered as a sufficient ground for sustaining a plea in abatement to an action at law. When both suits are commenced by the same party, it may furnish a proper occasion for a motion to require ■the party to elect which action he will first proceed in,”
The plea of misnomer, as to the name of the defendant corporation, “Southern Railway Company,” and “the Southern Railway Company,” is both too frivolous ■and too technical to be noticed.
There was no error in the trial court’s declining to strike from the complaint certain allegations as to certain acts of trespass or wrongs mentioned therein. If proven, they were circumstances for the consideration of the jury in determining punitive damages, if such could be shoAvn. The rule of laAV as to the measure of actual damages in such cases did not render such averments improper on the question of punitive damages.
The first and second counts of the complaint practically followed the forms prescribed in the Code for such actions and were sufficient. — Section 5382, form 26, pp. 1199- 1200, vol. 2, of the Code of 1907.
There was no error in sustaining demurrers to pleas 2 and 4. If there could be said to be any merit in either, the same matter was availing under the general issue, and, if error, it affirmatively appears that it was without injury. But we do not mean to say that there was error therein.
Plea 5 Avas clearly bad, if not frivolous. It was no defense to this action that' one of the plaintiffs’ was a married woman and lived with her husband and children on the land at the time of the alleged trespass.
Much of the evidence objected to by the defendant was a part of the res geste; and the other, if not, was admissible because between the parties or their authorized agents and about the subject-matter in dispute; and much of it was admissible for the jury to consider in determining the character and intent of the alleged trespass, and therefore bore upon the question of punitive damages. This was true although it was not admissible to show the extent or the amount of the actual damages.
The trial court did, however, err in excluding portions of the defendant’s answers to the interrogatories propounded to it by the plaintiff because not responsive to the interrogatories. If this had been an ordinary deposition of a witness, the rule would be different, but we do not mean to indicate what our ruling would be, if such were the case presented. Interrogatories to the parties, and their answers, under this provision of the Code, as has been frequently held, are. in the nature of bills, of discovery in equity. The proceeding is frequently spoken of and referred to as a statutory bill of discovery. The answers to the interrogatories, in such cases, are treated as pleadings as well as evidence. The party propounding the interrogatories may insist upon and compel full and complete answers or have the statutory penalties enforced against his adversary for fail
In the case of Sullivan Timber Co. v. Louisville & Nashville Railroad Co., 163 Ala. 125, 50 South. 941, the cases Avere reviewed, and it was there said, referring to Saltmarsh v. Bower, 22 Ala. 221: “This state of the laAV, in this regard, remained ivithout reflection upon its correctness until the decision in Bank v. Leland, 122 Ala. 289, 294, 25 South. 195, when for the- first time, so far as Ave are advised, it was said in effect that answers merely irresponsive might be stricken.”
We are also of the opinion that the trial court erred in giving the affirmative charge for the plaintiff. There can be no doubt that the railroad company had acquired the legal title to the land alleged to have been trespassed upon, unless the plaintiff had acquired title thereto by adverse possession. We are now speaking of the legal title, aside from the.actual possession of the band of land alleged to have been trespassed upon.
The defendant showed a perfect, proper, title to a right of way of 66-foot width at the point where the land is claimed to have been trespassed upon, and the
There is little, if any, doubt, we think, after examination of this record, that the plaintiff and those under whom she claims never intended to hold or claim, except to the right of way, and that the strip of land claimed was a part of the right of way; but the boundary line between the right of way and the plaintiff’s property was uncertain. It may be that she and they claimed this strip as their own and were not holding it with the permission or consent of the railroad company. On the other hand, it may be that this possession of the plaintiff and those under whom she claims was not adverse to the defendant but was in recognition of the defendant’s rights. This was a question for the jury, under all the evidence, and the court erred in taking this question from the jury.
It is true there is some evidence in the record that the defendant went more- than 33 feet from the center of the track and therefore off the right of way in plowing up the land; but there was other evidence to the effect that the defendant did not go beyond the right of way. This was therefore a question for the jury.
This action is trespass quare clausum fregit and not trespass de bonis asportatis, or vi et armis against the person, nor is it forcible entry. The rule of laAV insisted, on by counsel for appellees that the owner of land cannot take or retake possession of his own land by force applies to any one of the last three actions but not to the first mentioned. It is a perfect defense to an action of trespass quare clausum fregit to show that the defendant owns the land in question, and that he had, at the time in question, the right to enter; and the fact that he entered by force, over the protest of plaintiff, does not destroy his defense. If he uses more force than is necessary and injures the person or the property of the plaintiff, he is liable in an appropriate action; but that action is not quare clausum fregit. This action is to recover damages as for injury to the land, and if the plaintiff did not own the land, and his possession Avas wrongful, he could not suffer any damages, so far as the land Avas concerned, Avhatever damages he may have otherwise suffered in person or estate.
It is very true, as contended by counsel for appellees, that a man cannot take the laAV in his OAvn hands and right wrongs against him or his property by force, and that if he do so he is liable for the consequences of hid wrongful and forceful acts; yet he must be brought to account in an appropriate action which the laAV has provided.
It has ever been the laAV in this state that .title to the particular land and immediate right to the possession was a complete defense to an action of trespass quare clausum fregit. It has likewise ever been the law in this state that, if the owner, in taking possession of his property, used more force than Avas necessary to regain
As against a mere trespasser the plaintiff may recover in an action of quare clausum fregit by showing possession only; but as against the true owner, having-immediate right to possession, of course, he could not. This is made clear by all the authorities. “Possession, whether founded on a good or bad title, will support the action against a stranger or wrongdoer. Or the possession may be tortious, and a wrongdoer cannot justify or excuse an invasion of and injury to it. — Duncan v. Potts, 5 Stew. & P. 82 [24 Am. Dec. 766]; 2 Green. Ev. § 618. The title may be, and often is, drawn in question ; the gist of the action is nevertheless the injury to the plaintiff’s possession.” — Lankford v. Green, 62 Ala. 314, 318.
The case of Morris v. Robinson, 80 Ala. 291, does not, in our opinion, decide to the contrary of whát we now decide. There is a dictum in that opinion, quoted by appellee, which might be construed otherwise; but certainly nothing was decided in that case contrary to what is decided in this case. A judgment for the plaintiff in that case was reversed on account of an erroneous ruling as to evidence. If the affirmative charge could and should have been given in that case, without regard to the objectionable evidence, the judgment would not have been reversed. Aside from the title, the plaintiff had shown as strong a case as the plaintiff has shown in this case. In that case “the plaintiff showed that he had been in possession of the land upon which the alleged trespass was committed for 25 years; that in March, 1884, the defendant, Morris, with two or three other men, came on the land, which was near plaintiff’s house, and informed plaintiff that he (Morris) had come to move the fence; that plaintiff notified
The rule which we have declared in this case, and which was declared in the other decisions of this court cited above, is stated in Oyc. (volume 38, pp. 1047-1049) as follows: “Where the owner of land with right to immediate possession uses force in the exercise of his right to enter or retake possession, the question of his liability has been variously determined. The better opinion seems to be that title and right of possession is a good defense to a forcible entry by the owner of land on one holding possession, and forcible expulsion of such oc
In a Massachusetts case (Sampson v. Henry, 13 Pick. [Mass.] 36) the owner, a landlord, one or two days after the lease had expired, while the tenant’s wife was in travail, entered the land over the protest of the tenant and broke open the house in which the tenant was living; the tenant claiming that the lease had not expired. The tenant sued the landlord in trespass quare clausum fregit, and the court held that there could be no recovery in that action, though there might be a recovery as for other wrongs, offenses, and injuries.
The theory is that this action is solely to recover damages as for injuries to the land or to the possession thereof; and, if the plaintiff did not own the land and had no right to the possession as against the defendant, then of course the former could suffer no damages as to the land or the possession; whatever damages he may have suffered in -other respects, and as to other property or to person. ■
In the case of Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272, this earlier case was reviewed, and the court through Gray, C. J., speaking of the case of Sampson
The other assignments of error have been examined and those insisted upon carefully; and we find no error except as to the matters pointed out. Of course the two questions as to which we reverse entered into some of the other assignments (that is, the evidence excluded, which Ave hold to have been erroneously excluded, ought to have been admitted) ; and the right to recover any damages ought to have been left to the jury.
For these errors, the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.