Southern Railway Co. v. Cleveland

DOWDELL, C. J.

The first count of the complaint is in the Code form for trespass to land (quare clausum fregit), describing the injury thereto as “excavating and removing from said lands large quantities of sand and gravel, to wit, 20,000 cubic yards, on, to wit, the 1st day of December, 1907.” The second count is for conversion “on, to wit, the 1st day of September, 1906, and on divers days thereafter, of the following chattels, to wit: Twenty thousand cubic yards of sand taken by the defendant” from certain land — the same as that described in the first count. Issue was joined on the plea of not guilty to both counts, and, judgment being rendered for plaintiffs, the defendant appeals.

Several of the assignments of error are based on the sustaining of plaintiffs’ objections to defendant’s questions to witnesses, calling for testimony as to the value of the land immediately before and after the alleged trespass. Without considering these questions separately, we hold that the trial court was in error in *26 not permitting the defendant to adduce evidence in this respect under the issue as made on said first count. The general rule heretofore recognized by this court, in cases of trespass to real estate, when the injury is done to the realty itself, is that the measure of damages is the difference in the value of the land immediately before and after the trespass; that is, the diminution in the value of the land caused by the trespass.— Brinkmeyer v. Bethea, 139 Ala. 376 , 35 South. 996 , and authorities cited; also A. & B. A. Railway Co. v. Brown, 158 Ala. 607 , 48 South. 75 ; Buck v. L. & N. R. R. Co., 159 Ala. 305 , 48 South. 699 ; 28 Am. & Eng. Ency. Law (2d Ed.) 606; 13 Cyc. 150. The cases of White v. Yawkey, 108 Ala. 271 , 19 South. 360 , 32 L. R. A. 199, 54 Am St. Rep. 159, and Ivey Coal Co. v. Alabama Coal Co., 135 Ala. 579 , 33 South. 547 , 93 Am. St. Rep. 46 , are based on actions of trover, wherein, the measure of damages is different.

It follows that the court erred in refusing written charges 5 and 9, requested by defendant. Charge 5 might well have been given for the further reason that the first count alleges a single trespass, whereas the evidence shows a continuous trespass, or rather a chain or series of trespasses at divers times extending through a period of several years, without showing the damage arising from any single trespass. Where but a single trespass is charged on a specific day, as in the first count, the precise date of its commission being immaterial, it follows that the plaintiff may prove any time before the institution of the action, provided it is not barred by the statute of limitations if pleaded; but he is restricted to the proof of one act. — 21 Ency. Pl. & Pr. 812-816; Abercrombie v. Windham, 127 Ala. 180 , 28 South. 387 ; 2 Chitty on Pleading (11th Am. Ed.) 847, and notes; Kendall v. Bay State Brick Co., 125 *27*27 Mass. 533 ; Union Naval Stores Co. v. Pugh, 156 Ala. 369 , 47 South. 48 .

The paper writing introduced in evidence by the plaintiff, purporting to be a patent from the state of Alabama to Wm. P. Cleveland, dated January 2, 1872, does not appear to have been executed in compliance with Const. 1868, art. 5, § 13 (section 135, Const. 1901) ; but, while not admissible as a muniment of title, it was properly admissible in evidence as color of title, in connection with, the evidence tending to show adverse possession thereunder. We see no good reason why a defectively executed patent from the state, as well as a defectively executed deed by a private individual, or a void tax deed, however lacking in the essentials of a muniment of title, should not' operate as color of title, where it purports to convey the land or the right to its possession into the party asserting adverse possession, provided the party claims under it in good faith. Adverse possession for the requisite period of 20 years, under such a color of title, would enable the adverse possessor to successfully defend a suit by the state itself to recover the lands. — Goodson v. Brothers, 111 Ala. 589 , 20 South. 443 ; Florence Co. v. Warren, 91 Ala. 533 , 9 South. 384 ; Ala. State Land Co. v. Kyle, 99 Ala. 474 , 13 South. 43 ; Perry v. Lawson, 112 Ala. 480 , 20 South. 611 ; 4 Mayfield’s Dig. 101.

The court erred in admitting, over defendant’s objection, the certificate of the Secretary of State, giving certain abstracted information Avith regard to the patent copied from a “list of patents issued by the state,” purporting to give the name of patentee, price paid, etc. There is no statute making such a certificate evidence, and' it is no more than a memorandum made by a third party, and is not admissible for any purpose. The statute does require the Secretary of State to “re *28 cord all grants and patents issued by the state”” (Code 1867, § 1621; Code 1907, § 889) ; but this certificate is not a transcript of a recorded patent, has no “appearance of title,” and is no more admissible to show purchase and payment for the land than a memorandum made by any other third party. — N. C. & St. L. Ry. v. Mathis, 109 Ala. 381 , 19 South. 384 .

While the decree on final settlement of the estate of Margaret J. Cleveland does not appear to have been material, in the absence of any effort by defendant to show possession in the executors, we do not see how its introduction in evidence was harmful to defendant.

While the evidence as to the value of the particular sort of sand taken by defendant during the period in controversy, as well as the period wherein the trespasses were committed, is far from being clear, definite, and satisfactory, we do not think it necessary to review the action of the trial court in refusing charges 4 and 6, requested by appellant, in view of the fact that the case must be reversed and remanded for the errors above pointed out.

Act Feb. 12, 1879 (Acts 1878-1879, p. 198), is here assailed on constitutional grounds. This act confirmed title in purchasers from the state of “swamp and overflowed land,” where the purchase money had been paid. Aside from the recitals in the document introduced in evidence purporting to be a patent, and executed by one Chardavoyne, there is no evidence in this case that the purchase money was ever paid to the state, or to any one purporting to represent the state. The said document signed by Chardavoyne was competent in evidence as color of title, and for this purpose only. The recitals therein of the payment of purchase money were nothing more than the unsworn statement of Chardavoyne, and were simply hearsay evidence, and *29 therefore illegal and inadmissible. With the lack of evidence of the payment of the purchase money, Act Feb. 12, 1879, could be of no benefit to the plaintiffs in confirmation of their title, and therefore the- question of the constitutionality of the act need not be considered.

For the errors pointed out, the judgment is reversed, and the cause remanded,-

Reversed and remanded.

Anderson, Sayre, and Evans, JJ., concur.