Smythe Lumber Co. v. Austin

DOWDELL, C. J. The complaint claims of the defendants f5,000 for willfully and knowingly and without the consent of the owner of the land cutting down and destroying 500 pine trees. The action is evidently brought under the statute. — Section 6035,, Civ. Code 1907. The bill of exceptions purports'to contain all [112] of the evidence introduced upon the trial. Upon the conclusion of the evidence the court, at the request of the defendants in writing, gave the general affirmative charge to find for the defendants. This action of the court is here assigned as error, and is the only assignment of error on the record. To support this action legal title in the plaintiffs to the trees cut must be shown. Possession without the legal title is not sufficient. — Shelby Iron Co. v. Ridley, 135 Ala. 515, 33 South 331. We do not mean to intimate that even possession was shown under the evidence in the case. This we do not decide. The plaintiffs, to show title to the trees, introduced in evidence a deed from the owner of the land on which the trees were growing to the Kelly Lumber Company. T1 is deed bore the following indorsement: “For value received we hereby transfer the within timber lease to Smythe Lumber Company, with all rights and powers therein contained. ( Signed) Kelly Lumber Company, by T. A. Cumbie.” There was no attestation. This indorsement was ineffective as a conveyance of the legal title to the timber described in the deed, as much so aq if the deed had been for the land' itself on which the timber was standing. Crowing trees on land are a part of the realty, and the same formalities are required in a deed conveying the trees as in a deed conveying tbe land. — Davis v. Miller Brent Lumber Co., 151 Ala. 580, 44 South. 639. The plaintiffs having failed to show legal title to the trees alleged to have been cut, the court properly gave the general charge for the defendants as requested. Affirmed. Anderson, McClellan, and Sayre, JJ., concur.