Webb & Bros. v. Story

McCLELLAN, J. — This action, by appellants against appellee, was originally and as amended stated in four counts, consecutively numbered. Count 1 was stricken [585] on clenmrrer. Count 2 complained of trespass to plaintiffs’ lands, describing them. Count 3 was drawn testate a cause of action under Code, § 6035, for damages for tbe destruction of trees and saplings. Count 4 declares as for a willful and wanton trespass upon tbe lands described in tbe second count, and for cutting-timber and ditches thereon. To tbe complaint as a whole tbe defendant interposed special plea 2, in addition to tbe general issue. In tbe body of tbe special plea it is averred: “That be (defendant) did cut some trees on tbe lands described on a road which ivas a public road either by prescription or dedication on order of tbe court of county commissioners of Cherokee county, Ala., while action (acting) as road overseer in said road in Cherokee county, Ala., that be only cut such timbers as was in tbe right of way of said road and which were necessary in order to properly work said road and in accordance with bis duty as road overseer on said road.” Tbe assignment of error predicated of tbe action of tbe court in overruling- tbe demurrer to special plea 2 is without merit. Tbe demurrer to tbe special plea contained three grounds, viz.: It is not averred that tbe road was ever established by order of tbe commissioners’ court] it is not averred that tbe road was a public road subject to be worked] and tbe third ground •merely reiterated tbe first ground. It is manifest none of tbe stated grounds were well taken. A public road may be establisbéd and become such, of course by prescription (Jones v. Bright, 140 Ala. 268, 37 South. 79), or by dedication (Moragne v. Gadsden, 170 Ala. 124, 54 South. 518), in addition to its establishment by order of tbe commissioners’ courts. Tbe plea embraced tbe three alternatives. Tbe sufficiency vel non of tbe averments of tbe character of tbe road, or of its averred ap [586] propriation by the public so as to vest the right thereto under the doctrine of prescription, or of the manner of dedication, were not tested by the demurrer. Under the pleading and the evidence it was a question for the jury whether there had been a dedication, or the investment of right in the public by prescription, of or to the way involved. There was no evidence that the way was a public road by virtue of the order of the commissioners’ court. If it were assumed that Story as overseer was without lawful authority to enter and clear and ditch as he did, the matter of his good faith and honest intention was of the issue arising under count 3. — Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 South. 266; Glenn v. Adams, 129 Ala. 189, 29 South. 836. The alleged commission, as overseer on this road, delivered to him by the apportioner, was at least admissible under this feature of the issues. Whether, in the circumstances some of the evidence shows, it was taken or secured or acted under in good faith and with honest intention, was a matter for the jury to consider and determine. The objection to the admission in evidence of this paper did not seek to thus limit its effect; it went to the general admissibility of the paper. The court did not err in admitting the alleged commission. There was likewise no error in admitting the evidence (paper) of Nelson’s authority as apportioner. It was from or through him' the alleged commission to Story came. Special charges 1 and 2, refused to plaintiffs, were abstract, for that, it was affirmatively proven that no order of the court, establishing this as a public road, was ever entered. The refusal of an abstract charge cannot be the basis for error. Special charge 3, refused to plaintiffs, was properly refused under the issues tendered by count 3 — that for [587] the statutory penalty for cutting trees, etc. As has been stated, the alleged commission to Story was a proper element of evidence on the question of good faith and honest intention. There is no merit in the error assigned and urged in brief for appellants. We cannot consider any others. The judgment is affirmed. Affirmed. Anderson, Sayre, and Somerville, JJ., concur.