Daffin v. C. W. Zimmerman Mfg. Co.

ANDERSON, J. When this case was here before (149 Ala. 380, 42 South. 858, 9 L. R. A. [N. S.] 663) it was held that the plaintiff, being only a life tenant, could not maintain trover or trespass for converting or taking the trees, but could maintain trespass quare clausum fregit, and recover such actual damages as he sustained to his possession, and the complaint was amended to meet this holding. The inquiry then was: What damage was done to the plaintiff’s use and enjoyment of the premises, as distinguished from what might be termed a permanent injury to the freehold? It is true the land was of such character and condition ¿s to be susceptible of but little injury, other than denuding it of the timber, and for which the remaindermen, and not the plaintiff, are the proper ones to seek redress; yet there was evidence from which the jury could infer injury to the plaintiff’s possession, and upon which they could predicate some damage, be it ever so little. There was proof that it was cut up by many deep roads and ruts and rendered less accessible to the plaintiff. In fact, it was said in the former opinion that the plaintiff was entitled to recover nominal damages, which would render the giving of the general charge improper. We may add that the proof on this tidal could have justified more than nominal damages for the trespass. There was also proof from which the jury could infer that the defendant ivas [639] liable for tbe trespass, and tbe trial court erred in giving tbe general charge for the defendant. . The plaintiff should have been permitted to prove that the logs hauled from the land were delivered to the defendant, as this was a circumstance tending to show that the trespass was committed by it and with its knowledge and consent. Conceding that the complaint, in this case comes within the influence of the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389, there was evidence from which the jury could infer that the defendant ordered, directed, or sanctioned the trespass. Indeed, there was evidence unchallenged that the defendant had the hauling done (testimony of Oommillion and Tompkins). Nor does the evidence shew that the trespass was at intervals and so discontinuous in its character as to bring this case within the influence of Abercrombie v. Wyndham, 127 Ala. 179, 28 South. 387. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Simpson and Denson, JJ., concur.