Lamont v. Marbury Lumber Co.

McCLELLAN, J. This is the second appeal.—169* Ala. 33, 53 South. 773. The action is trespass to realty. The report of the appeal will contain the counts of the complaint. To them pleas 2 and B were interposed; and demurrers to thém, the particular grounds of which the report of the appeals will disclose, were overruled. This appeal only presents for review that action of the trial court. These pleas sought to invoke in bar of recovery this statute (Code, § 6026) : “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 lines shall not lose their right to the same, when the survey, places the fences or buildings upon the lands of others.” This section (6026) is the duplicate of section 3898 of the Code of 1896. The Code of 1886, section 942, did not include buildings; that subject of the statute’s effect being new to the Code of 1896. The Code of 1896 went into operation and effect on February 17, 1898, by proclamation of the Governor.—Acts 1896-97, p. 1089. In count 1 it is averred that the building removed was “erected in 1897.” Count 2 is silent as to the time the building in question was erected. Aside from the fact that plea -2 was conditional—a method of pleading not to be at all commended (Smith v. Agee, 178 Ala. 627, 59 South. 647)—that plea appears to have accepted, without denial, the time of erection of the building as [441] averred in count 1, in the year 1897. The statute (section 3898; section 6026) not being in effect as respected buildings until February 17, 1898, plea 2 was subject to the first ground of demurrer (stated in two forms), taking the objection, in substance, that the plea did not show the right of the defendant to the protective provisions of the statute. The statute cannot be given a retrospective operation, or an effect that would visit its preservation against loss, of the right to the material mistakenly employed in the improvement of another’s land, upon cases where the improvement, though mistakenly made, was made before the statute became effective. The general rule requires that statutes be given a prospective operation unless the contrary legislative intent clearly appears from the enactment.—-Dickens v. Dickens, 174 Ala. 305, 311, 56 South. 809; Leahart v. Deedmeyer, 158 Ala. 295, 48 South. 371. In this statute (section 3898), there is no indication or expression of a legislative purpose to undertake the application of the provisions of the statute to a status of fact and of right already established when section 3898 (Code of 1896) was made to include buildings. Again, the erection of the buildmg in question, if it was done before February 17, 1898, on the land of plaintiff (appellant) invested it with the character and quality of the realty on which it was placed, and it became the property of the OAvner of the soil, in the absence of contractual reservation to the contrary. To attribute to the statute the legislative purpose to effect the divestiture of a property right thus vested in the owner of the land avouIc! result in importing invalidity into the enactment.—36 Cyc. p. 1210, et seq.; Leahart v. Deedmeyer, supra. Such a result Avill be avoided if at all reasonably possible. Plea B was subject to the like infirmity, and was hence demurrable on the ground indicated. [442] It should be said, however, that no doubt is entertained of the necessary effect of the statute being to clothe persons within its terms with the right to peaceably and seasonably enter the lands of the adjacent proprietor for the strictly limited purpose of removing and to remove his material mistakenly employed in improving or laid upon the other’s land. In such circumstances the remover has immunity from liability for a trespass, according with the largely analogous right of temporary entry treated in State v. Simons, 145 Ala. 95, 40 South. 662. It is not to be supposed that the preservative right established by the statute under view was only intended to be declared, and not the subject of such nondamnifying, temporary, restricted entry as would allow it to be available. It is insisted for appellee that there is no sufficient judgment entry showing the court’s ruling on the demurrer. The authorities relied on have been considered in the light of the judgment entry shown by the record. Our conclusion is that the appellee’s insistence in this respect is not well founded. . For the errors indicated, the judgment is reversed and the cause is remanded. Reversed and remanded. Anderson, C. J., and Sayre and de G-raffenried, JJ , concur.