MAYFIELD, J.
This was an action by appellants to recover the statutory penalty for destroying trees or saplings growing on certain land described as the west half of fractional section 35, township 17, range 16, in Autauga county.
The timber was cut or destroyed in clearing off and cleaning out an old ditch known as “Frenchman’s ditch,” often referred to in various deeds and mortgages through which both parties claim title to the lands; and it is claimed by the plaintiffs that the ditch forms the boundary line between their land and that of the defendants, and that the trees, saplings, and bushes cut by defendants were growing on plaintiffs’ side of the ditch.
The ditch was cut to drain a pond known as “Cypress pond,” located on the lands of both plaintiffs and defendants. It is not made certain when the ditch was originally cut, or by whom, whether by plaintiffs’ or defendants’ predecessors in title. It was cut long before either of these parties ever acquired an interest in the lands. It was, however, maintained by the defendants and their predecessors in title.
The defendants claim to own the whole of the ditch; that it is wholly on their land, notwithstanding it is mentioned in various deeds, wills, and mortgages as the boundary line between the two tracts of land owned respectively by the plaintiffs and the defendants.
The plaintiffs claim — -and their theory is 'borne out by the descriptions in their chain of title — -that they own the west half of the fractional section, and that the defendants own the east half thereof, and that the ditch is, and for many years has been recognized as, the boundary line. The defendants’ contention is that they own the east two-thirds of the fractional section, and that the plaintiffs own only the west one-third
part thereof; that the calls of the deeds, as to the west half, are mere errors in description ; that the legal title to the middle one-third, on which the ditch is located, never passed by the deeds; and that the title thereto has never been acquired, by adverse possession, under their color of title, by either the plaintiffs themselves or their predecessors in title — that the legal title to the ditch is in the defendants notwithstanding the various misdescriptions in plaintiffs’ chain of title. The defendants also claim that, if they do not own the land on which the ditch is located, they and their predecessors in title have acquired a continuous easement in and to the ditch to drain their lands, and that the cutting away of the trees, saplings, and bushes was a necessary and proper, use of the easement in order to drain the land.
On the other hand, the plaintiffs claim— and there is some evidence to show — that, if the legal title to the west bank of the ditch did not pass to them by virtue of the conveyances, then they and their predecessors in title have acquired title by adverse possession and prescription.
There was ample evidence to carry each of these questions and contentions of the defendants to the jury; and plaintiffs were not entitled to the affirmative charge as to the whole case, nor upon any one of the theories as to which such instructions were requested and refused. There was no evidence that the ditch was cut as a joint enterprise, or was maintained as such, although it was repeatedly referred to as the boundary line between the two tracts.
There are discrepancies in the description of defendants’ chain of title. Some parts of the description would make the ditch the boundary line, while others would not— when referred to the area and quantity conveyed. In other words, their chain of title describes:
“All of fractional section 35, lying north and west of the Alabama river, except 189 acres off the west side thereof, which is now owned by John H. Carew, and is separated from the lands by a ditch, leaving 378 acres more or less in section 35 hereby conveyed.”
If the plaintiffs acquired title by deed to only 189 acres, that excepted from defendants’ chain of title, and the defendants acquired 378 acres, and plaintiffs or their predecessors in title have never acquired title by adverse possession, then the ditch is on the lands of the defendants and not on those of the plaintiffs. It follows that, if the title in this state and condition could be inquired into, the plaintiffs would not be entitled to the affirmative charge.
The question of easement and the proper use thereof was also a question for the jury.
[1]
There was no error in admitting in evidence the will of Jacob Whetstone; there
being in the
case a question as to disputed boundary lines, color of title, and discrepancies as to the descriptions of the two tracts of land. It was certainly admissible as color of title and bona fide claim of right, which, if established, is a defense to the action. Glenn v. Adams, 129 Ala. 189, 29 South. 836; Russell v. Irby, 13 Ala. 131; Postal Co. v. Lenoir, 107 Ala. 640, 18 South. 266; Williams v. Hendricks, 115 Ala. 277, 22 South. 439, 41 L. R. A. 650, 67 Am. St. Rep. 32.
The same is true as to other documentary evidence offered by the defendants and admitted by the court. Each was admissible as tending to show color of title and bona fide claim of right. If it could be said that they did not show or tend to show color of title in defendants to the land or trees in dispute, still they related to the subject-matter, and were the muniments of title under which defendants claimed title and right, and the case involved questions of disputed boundary lines and adverse possession, which, rendered them admissible.
A party cannot successfully resist the admission'of competent and relevant evidence offered by his adversary, though it fail to prove title or right in his adversary. If it be competent and relevant, it cannot be excluded, though it defeat the claim of the party offering it. We do not mean to intimate that such was the effect of this evidence, but merely hold that there was no error in admitting any of the documentary evidence.
[2]
A close and repeated examination of this record with the aid of elaborate briefs of counsel for both sides, leads us to the inevitable conclusion that there is now, and was at the time the timber was cut, a bona fide claim of both parties to the land on which the timber was growing. Both parties were claiming to be in possession when the timber was cut or destroyed. This being true, the title and right of possession should not be attempted to be determined in a penal transitory action like this. This construction has always been placed on this and similar statutes. It has been repeatedly decided by this court that this penal statute does not give a right of action, even to the owner of the land, against one who is in possession under color of title and bona fide claim of ownership. The question was repeatedly brought to this court on several appeals, in the case of Long v. Cummings. On these appeals the authorities were reviewed and followed. On the first appeal it was said:
“Under this statute, it will be observed, the right of action is given to the owner of the lands; and it is wholly immaterial whether ho was in possession at the time the cutting was done or not. Rogers v. Brooks, 105 Ala. 549, 17 South. 97; Gravlee v. Williams, 112 Ala. 539, 20 South. 952; Higdon v. Kennemer, 120 Ala. 193, 24 South. 439.
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MAYFIELD, J.
This was an action by appellants to recover the statutory penalty for destroying trees or saplings growing on certain land described as the west half of fractional section 35, township 17, range 16, in Autauga county.
The timber was cut or destroyed in clearing off and cleaning out an old ditch known as “Frenchman’s ditch,” often referred to in various deeds and mortgages through which both parties claim title to the lands; and it is claimed by the plaintiffs that the ditch forms the boundary line between their land and that of the defendants, and that the trees, saplings, and bushes cut by defendants were growing on plaintiffs’ side of the ditch.
The ditch was cut to drain a pond known as “Cypress pond,” located on the lands of both plaintiffs and defendants. It is not made certain when the ditch was originally cut, or by whom, whether by plaintiffs’ or defendants’ predecessors in title. It was cut long before either of these parties ever acquired an interest in the lands. It was, however, maintained by the defendants and their predecessors in title.
The defendants claim to own the whole of the ditch; that it is wholly on their land, notwithstanding it is mentioned in various deeds, wills, and mortgages as the boundary line between the two tracts of land owned respectively by the plaintiffs and the defendants.
The plaintiffs claim — -and their theory is 'borne out by the descriptions in their chain of title — -that they own the west half of the fractional section, and that the defendants own the east half thereof, and that the ditch is, and for many years has been recognized as, the boundary line. The defendants’ contention is that they own the east two-thirds of the fractional section, and that the plaintiffs own only the west one-third
part thereof; that the calls of the deeds, as to the west half, are mere errors in description ; that the legal title to the middle one-third, on which the ditch is located, never passed by the deeds; and that the title thereto has never been acquired, by adverse possession, under their color of title, by either the plaintiffs themselves or their predecessors in title — that the legal title to the ditch is in the defendants notwithstanding the various misdescriptions in plaintiffs’ chain of title. The defendants also claim that, if they do not own the land on which the ditch is located, they and their predecessors in title have acquired a continuous easement in and to the ditch to drain their lands, and that the cutting away of the trees, saplings, and bushes was a necessary and proper, use of the easement in order to drain the land.
On the other hand, the plaintiffs claim— and there is some evidence to show — that, if the legal title to the west bank of the ditch did not pass to them by virtue of the conveyances, then they and their predecessors in title have acquired title by adverse possession and prescription.
There was ample evidence to carry each of these questions and contentions of the defendants to the jury; and plaintiffs were not entitled to the affirmative charge as to the whole case, nor upon any one of the theories as to which such instructions were requested and refused. There was no evidence that the ditch was cut as a joint enterprise, or was maintained as such, although it was repeatedly referred to as the boundary line between the two tracts.
There are discrepancies in the description of defendants’ chain of title. Some parts of the description would make the ditch the boundary line, while others would not— when referred to the area and quantity conveyed. In other words, their chain of title describes:
“All of fractional section 35, lying north and west of the Alabama river, except 189 acres off the west side thereof, which is now owned by John H. Carew, and is separated from the lands by a ditch, leaving 378 acres more or less in section 35 hereby conveyed.”
If the plaintiffs acquired title by deed to only 189 acres, that excepted from defendants’ chain of title, and the defendants acquired 378 acres, and plaintiffs or their predecessors in title have never acquired title by adverse possession, then the ditch is on the lands of the defendants and not on those of the plaintiffs. It follows that, if the title in this state and condition could be inquired into, the plaintiffs would not be entitled to the affirmative charge.
The question of easement and the proper use thereof was also a question for the jury.
[1]
There was no error in admitting in evidence the will of Jacob Whetstone; there
being in the
case a question as to disputed boundary lines, color of title, and discrepancies as to the descriptions of the two tracts of land. It was certainly admissible as color of title and bona fide claim of right, which, if established, is a defense to the action. Glenn v. Adams, 129 Ala. 189, 29 South. 836; Russell v. Irby, 13 Ala. 131; Postal Co. v. Lenoir, 107 Ala. 640, 18 South. 266; Williams v. Hendricks, 115 Ala. 277, 22 South. 439, 41 L. R. A. 650, 67 Am. St. Rep. 32.
The same is true as to other documentary evidence offered by the defendants and admitted by the court. Each was admissible as tending to show color of title and bona fide claim of right. If it could be said that they did not show or tend to show color of title in defendants to the land or trees in dispute, still they related to the subject-matter, and were the muniments of title under which defendants claimed title and right, and the case involved questions of disputed boundary lines and adverse possession, which, rendered them admissible.
A party cannot successfully resist the admission'of competent and relevant evidence offered by his adversary, though it fail to prove title or right in his adversary. If it be competent and relevant, it cannot be excluded, though it defeat the claim of the party offering it. We do not mean to intimate that such was the effect of this evidence, but merely hold that there was no error in admitting any of the documentary evidence.
[2]
A close and repeated examination of this record with the aid of elaborate briefs of counsel for both sides, leads us to the inevitable conclusion that there is now, and was at the time the timber was cut, a bona fide claim of both parties to the land on which the timber was growing. Both parties were claiming to be in possession when the timber was cut or destroyed. This being true, the title and right of possession should not be attempted to be determined in a penal transitory action like this. This construction has always been placed on this and similar statutes. It has been repeatedly decided by this court that this penal statute does not give a right of action, even to the owner of the land, against one who is in possession under color of title and bona fide claim of ownership. The question was repeatedly brought to this court on several appeals, in the case of Long v. Cummings. On these appeals the authorities were reviewed and followed. On the first appeal it was said:
“Under this statute, it will be observed, the right of action is given to the owner of the lands; and it is wholly immaterial whether ho was in possession at the time the cutting was done or not. Rogers v. Brooks, 105 Ala. 549, 17 South. 97; Gravlee v. Williams, 112 Ala. 539, 20 South. 952; Higdon v. Kennemer, 120 Ala. 193, 24 South. 439. But it is a valid de
fense to the action that the defendant, when he cut the trees, did so under the honest belief that the land was his own. Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 South. 266; Glenn v. Adams, 129 Ala. 189, 29 South. 836; White v. Farris, 124 Ala. 461, 27 South. 259, and cases cited in the opinions. In White v. Farris, supra, it is distinctly held that, the statute being strictly penal, it was not ‘the intention and purpose of the Legislature, in its enactment, to give such penalty as against one in the actual adverse possession of the land under color of title bona fide claiming to own the same,’ ” Long v. Cummings, 156 Ala. 579, 47 South. 110.
On the second appeal it was said:
“The timber was cut openly, under claim of right. There is no evidence tending to show that the defendant cut the trees, knowing that the land belonged to plaintiff. The evidence does not show conclusively that the strip of land does belong to the plaintiff. In fact, as said by this court when this case was before it at a previous term: ‘It is impossible to 'read the evidence set out in the record without reaching the conclusion that the real controversy between the parties is the location of the boundary line.’ Long v. Cummings, 156 Ala. 577, 580, 47 South. 109, 110. The plaintiff failed to prove such a cutting as would authorize a recovery of the penalty provided by said section of the Code, under our decisions thereunder.” Long v. Cummings, 165 Ala. 343, 51 South. 744.
On the third appeal (182 Ala. 507, 62 South. 517), the above excerpts were quoted and approved.
There is no dispute that both parties claim title to the land from which the timber was cut by defendants. The bona fides of defendants’ claim was submitted to the jury under proper instructions, and they found for the defendants. We find no error that will justify us in the reversal of this judgment. What is said here, as to the title, claims and possession, of the parties as to the strip of land from which the timber was cut, is intended only for the trial of this personal, transitory, and penal action.
[3]
It is needless to say that this judgment is no bar to a real action or one in the nature thereof to try titles between these two claimants as to this strip of land.
In the case of White v. Farris, 124 Ala. 461, 466, 27 South. 259, 261, it is said:
“Ownership of the land from which the trees are cut is made by the statute an essential element of the right of recovery of the penalty given. The title or ownership of the land must be averred in the complaint, and if denied or put in issue by the plea of the defendant it must be proven before any recovery can be had. The right to the penalty necessarily depends upon the title or ownership of the land, and it follows that the plaintiff’s title to the land may become an issuable fact. But notwithstanding such an issue may become involved in the trial, the action is nevertheless a personal, transitory action. While the penalty given by the statute is based upon the idea and theory of a trespass committed, yet, unlike the actions of trover or detinue, for trees or timber which have been cut and severed from the freehold and converted, where actual or constructive possession of the land by the plaintiff must be shown before a recovery can be had, this statute, in terms, gives the owner of. the freehold his remedy and right of action without proof of actual possession. While this is true, the statute being strictly penal in its nature, we do not think that it was the intention and purpose of the Legislature in its enactment to give such penalty as against one in the actual adverse possession of the land under color of title bona fide claiming to own the same. * * *
“In the case of Brooks v. Rogers, 101 Ala. 124 [13 South. 386], McClellan, J., speaking for the court, said: ‘The cases of Cooper v. Watson, 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, are clearly distinguishable from this one, in that the defendants in those cases held adversely to the plaintiffs — a fact which is of controlling importance — and the recoveries sought involved trials of the conflicting claims of title which could not be adjudicated in these transitory actions.’ ” 124 Ala. 467, 27 South. 262.
“It is hardly reasonable to conclude that the Legislature intended by the enactment of this statute to impose a penalty upon one in adverse possession of the land under color of title, in good faith claiming to own the saíne. As we have stated above, in this action for the recovery of the penalty given by the statute, the title of the plaintiff to the land is of necessity involved in the suit, and the fact that his title may be controverted by the defendant will not prevent his recovery provided he sustains his averment of title or ownership, there being no conflicting claim of title set up; yet if the issues as made up under the pleadings involve a trial of conflicting claims of titles of the parties to the suit, and such as would arise out of the defense of an adverse possession by the defendant under color of title and bona fide claim of ownership, if such defense be sustained by the proof, the plaintiff would be defeated in his right of recovery of the penalty for trees cut by the defendant during such' adverse possession and bona fide claim of ownership.” 124 Ala. 468, 27 South. 262.
It follows that the judgment of the lower court must be affirmed.
Affirmed.
ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.