Marbury Lumber Co. v. Lamont

ANDERSON, J. There was evidence from which the jury could infer that the defendant committed the trespass, as charged in the second count of the complaint, and the trial court did err in refusing the general charge requested by the defendant. Whether tbe defendant was or was not the owner of the house iu question, under the terms of section 6026 of the Code of 1907, was a question for the jury, and whether or not ownership of the house gave the right to enter upon the plaintiff’s land and remove it we need not decide, as the deed reserved this right, in case, of course, the defendant owned the house, as the right reserved by the deed was to go upon the land for lawful purposes only. Moreover, even if the defendant owned the house and had the right to go upon the land to re — 38 — move same, it is questionable *if it should not be specially pleaded, to operate as a complete defense, and which was not done, as the only plea interposed was the general issue. The defendant had the right, however, under the general issue, to invoke section 6026 of the Code, if the owner of the house thereunder, in mitigation of damages. — Stephenson v. Wright, 111 Ala. 579, 20 South. 622. Said section reads as follows: “When a survey of land is made by a county. surveyor for the purpose of straightening or locating section or other lines, the owners of the fences or buildings erected on or near the original or supposed line shall not lose their right to the same, when the survey places the fences or buildings upon the lands of others.” It is evident that this section was intended to remove the rigor of the common law by preventing the loss of improvements made by one on the lands of another on or near the dividing line, but only when made upon the supposition that they were being erected on his own land or on the dividing line, and not when knowingly placed upon the lands of another. As was said in the case of Edgar v. State, 156 Ala. 147, 47 South. 295: “The purpose Of the statute is to prevent one who innocently. and through mistake erects a fence or building on the land of another from losing the material used in such structure.” If, therefore, the defendant or its predecessor knew, when the house in question was erected, that it was being placed on the lands of another, then it was so placed at the peril of the erector, and who can derive no benefit from section 6026. On the other hand, if the location of the line was doubtful and the improvements were made under the honest belief that they were not being placed on the land of another, the party making the same does not lose the right to the material, notwithstanding a subsequent survey, by the county sur — 39 — veyor, places them, upon the lands of another. The house in question was very near the line, and it was not definitely located on the plaintiff’s land until 1905, if then, hut had been used by the Marbury Company, through its servants or tenants, for several years between the construction of same and the said survey made by the county surveyor in 1905. True, there was proof that the elder Marbury, who had the houses built, had. notice before the final completion of the one in question that the land upon which it was placed was owned or claimed by another. The proof is not conclusive, however, that he knew it was not his land, or that he got the information as to the claim or ownership of another before he ordered the house erected or before it Aims practically completed. The Avitness Welch stated that, when he had the conversation with Mr. Mar-bury, the house lacked only about an hour’s Avork of being completed, and the fact that Marbury attempted to intercept the construction of same Avas a circumstance for the jury, which might tend to show that Avlien he ordered it built he AAras under the impression that it was on his land and desired to stop it after hearing that it was over the line, indicating that he did not intend putting it on the land of another. It was a question for the jury to determine whether or not the elder Marbury knew, when ordering the house erected, that it was to be placed on the land of another. He may have gotten the information that it Avas not his land after he ordered it built, or the information he got may not have been absolute or convincing to him that it Avas not his own land. Charge B, given at the request of the plaintiff, was bad. It, in effect, assumes that the defendants or those under whom they claim knew when the house was built or 14 years before the trial or removal that it was on the land of another, — 40 — when it was a question for the jury to determine, if they ever knew, before the survey of 1905, that it was on the land of another. It is true the charge is predicated on a right to remove and fixes 14 years as a -reasonable time, but it assumes that the true location was known 14 years ago, which was a jury question, as the defendants may not have known until after the survey that the house was on the plaintiff’s land. The elder Marbury may have heard of the land being owned or claimed by another, yet may have entertained a doubt on the subject and which may not have been clearly or conclusively settled until the survey made in 1905. It also states the bald fact that 14 years is not a reasonable time within which to remove property, and which is not necessarily accurate in all cases, and especially when applied to the defendants’ theory of the case at bar. If the defendants did not know positively until after the survey of 1905 that the house was on the land of another, it was not incumbent upon them to remove it until after the ownership was settled by the county surveyor, although it may have been constructed for 14 years or longer. The trial court also erred in giving charge A upon the request of the plaintiff. It assumes a trespass, which fact was a question, under the evidence, for the jury. The plaintiff in order to make the act of the defendants in removing"the house a trespass had to show possession, actual or constructive, of the house at the time. She was not in the actual possession of the house, but relied upon constructive possession, under title to the land, and had to show that the house was on her land in order to make the defendant a trespasser under any aspect of the case. This she did not do beyond dispute, as it was for the jury to determine whether or not the — 41 — house that was injured or removed was on the plaintiff’s land. The only witness who seems to know the exact location of the line between the plaintiff and defendants was by no means positive or certain that the house in question was on the plaintiff’s land. This witness Picket, the county surveyor, did say that it was his impression or recollection that the house in question was on the plaintiff’s land; but, when he made the map of her land shortly after the survey, he put the other house on it and left this one off, admitted he had only a faint recollection of the house near the trestle, which he did not indicate on the map when he made it. He was subsequently approached by a brother of the plaintiff, and urged to put this house on the map, and states: “Then I thought about it, and I said: ‘Well, it seems to me there was a house there, but I won’t be sure, and I will put it in pencil, not in ink, but in pencil.’ I had a faint recollection that the house was there. That is all. My best recollection is the house is about where the pencil mark is. I would not be positive, but to the best- of my recollection it is about the pencil mark. To the best of my 'recollection it is on Mrs. Lamont’s land.” We do not think that the house was located on the land of the plaintiff with such a degree of certainty as to authorize the court in assuming that it was, which was the effect of plaintiff’s given charge A, but think that its location was a question for the jury, and that said charge was an invasion of their province. It is true that some of the oral charge excepted to is involved and perhaps confusing but some of it is sound and the exception does not. separate the bad from the good, if any of it is bad, which we need not decide, as the trial court would not be reversed on account of same. — 42 — Charge 4, requested by the defendant, was properly refused. It was a question for the jury as to whether or not so much of the house as was taken and carried away belonged to the plaintiff or defendant. There was no merit to the objections to the evidence. The Jim Harris house tras not involved in the controversy. For the errors above noted,' the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Sayre and Evans, JJ., concur, in the conclusion and in the opinion, except in so far as it holds that the refusal of charge B was reversible error. They think the charge states the laiv in the abstract, but is misleading wdien referred to the facts in the case, and could have been refused, but do not think that the giving of same w3 4**7as reversible error.