Brantley v. Gunn

STONE, J. All the questions in this case, except' those which arise out of the register’s report, fixing the value of the rents and profits, and the extent of damage to the land .by clearing it, were settled when this case was heretofore in this court. — Gunn v. Brantley, 21 Ala. 633. [391] The assignments of error, although sis in number, present for our revision, 1. The propriety of the decree of reference, rendered May 19th, 1853; 2. The decretal order on exceptions to the report of the register at May term, 1854, re-referring the case with instructions; 3. The final decree rendered at the November term, 1854, overruling the complainant’s exceptions to the amended report, and comfirming said reports. 1. The decree of reference pronounced by the chancellor May 19, 1853, is strictly in accordance with the law of this case, as declared by this court, (see 21 Ala. 633,) and the same is free from error. 2. The decretal order of May term, 1854, disposes of the exceptions, eleven in.number, which'were filed by the defendant to the first report of the register. The chancellor overruled the exceptions numbered 5, 6, .7, 9, and 10; and hence they are out of view. The 1st, 3d and 4th exceptions may be considered together, as they present substantially one question. Money is the legal standard of value. The witnesses should have deposed to the money value of the rents,; and the effort to prove a custom to receive a portion of the product of the land as a compensation for rent, with a view of shoAving afterwards what such modus or composition would have yielded, was. calculated to multiply the issues, and embarrass the investigation. There was no error in sustaining these exceptions. The 2d and 11th exceptions might have been unconditionally overruled, because each of them included distinct matters, as to a part of which the report was free from error — Franklin v. Keeler, 4 Paige, 382; Pearson v. Knapp, 1 Mylne & Keene, 312. Or, an exception may, in the discretion of the chancellor, be sustained in part, and overruled in part, unless it be so specially framed as to prevent such partial allowance. Hoare v. Johnston, 4 Mylne & Craig, 127. The testimony fully justified the reduction ordered by the chancellor, in the rent of the land described as the Indian old fields. The 8th exception raises the inquiry, what is the proper [392] criterion for ascertaining tbe consequential injury to the lands cleared by Gunn? We are satisfied, that both on principle and authority, the inquiry must be limited to the effect on the market value of the land, at the time of the unauthorized clearing. — Montgomery & W. P. R. R. Co. v. Varner, 19 Ala. 185; Ivey v. McQueen, 11 Ala. 408; Schuylkill Nav. Co. v. Pair, 4 Watts & Serg. 362; Zimmerman v. Union Canal Co., 1 Watts & Serg. 846. Deterioration from cultivation of the soil might probably enter as an element into the value of the use and occupation; but it is certainly too remote tobe considered as the legal sequence of the simple act of felling the timber. 3. The complainant filed six several exceptions to the second, or amended report of the register; and the chancellor, in his final decree at November term, 1854, overruled each of said exceptions. The 3d and 6th exceptions relate to the admissibility of evidence. In each case the objection was general, to a mass of testimony, some portion of which was clearly legal. In such case, this court has repeatedly and uniformly held, that the court is not required to separate the legal from the illegal evidence, but may, without committing a reversible error, either admit or reject the whole. — Murrah v. Branch Bank, 20 Ala. 392; Melton v. Troutman. 15 Ala. 535; Smith v. Zaner, 4 Ala. 99; Gibson v. Hatchett, 24 Ala. 201. The 1st and 4th exceptions question the sufficiency of the allowance reported by the register, as consequential damages. Looking into the testimony, we find no warrant for disturbing his conclusions on this point. The 2d and 5th exceptions relate to the allowance as rent for the last year of the account. The testimony does not justify a larger sum, and these exceptions were properly overruled. There is no error in the record, and the decree of the chancellor is affirmed. Rioe, 0. J., not sitting.