The third plea was subject to the objection taken by the demurrers, that it does not show that the board of commissioners of roads and revenue of Mobile county had jurisdiction over the road in question, or colorable jurisdiction which fairly called for the exercise of judgment with respect thereto, and that the action of the board involved an affirmative decision that the board had jurisdiction of the subject-matter and of the person, and that the members of the board determined in good faith, without malice, that the case presented called for the exercise of such jurisdiction. Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A. (N.S.) 164.
The plea was bad for another reason pointed out in the demurrers. It undertakes to answer the charge of trespass made by the complaint, without showing that the removal of the fence from the road was the only act of the defendants constituting the alleged trespass. A plea purporting to answer the whole complaint when the matter set up at most only answers a part of the complaint is bad. U.S. Fidelity Guaranty Co. v. Damskibsaktieselskabet Habil, 138 Ala. 348, 35 So. 344.
The evidence shows without dispute that one of the road supervisors, at the instance of one of the community, without making application to the commissioners, as required by section 5771 et seq. of the Code 1907, changed the road where it crossed the lands subsequently acquired by the plaintiff, locating the road as changed at some points 15 rods from the track of the old public road; that the change was made about the year 1909, or about five years before the alleged trespass. There was no evidence that the owner of the land at the time of the change consented or requested the change to be made. The defendants offered to show that the public generally used the road after its change for a period of six or seven years, and complain that the court refused to admit this evidence. The ruling was correct.
"In order to establish a highway by prescription it must appear that the use by the public has been adverse to the owner under claim of right and not by his permission for a period of 20 years or more. The mere use of lands for the purpose of a road carries with it no presumption of adverse claim or claim of right to so use it." Jones v. Bright, 140 Ala. 268,37 So. 79; Whaley v. Wilson, 120 Ala. 502, 24 So. 855.
Justification under legal authority is not available as a defense to an action of trespass unless specially pleaded; but the defendant may show under the general issue, in mitigation of damages, that he was at the time of the trespass acting in good faith under what he considered legal authority. Stephenson v. Wright, 111 Ala. 579, 20 So. 622; Womack v. Bird, 51 Ala. 504; Id., 63 Ala. 500; W. U. T. Co. v. Dickens, 148 Ala. 484,41 So. 469.
Therefore evidence showing or tending to show that the members of the board of commissioners of roads and revenue were acting officially in the matter was competent, and the court erred in sustaining the plaintiff's objection to the questions asked the witness Gaillard on cross-examination eliciting testimony that the commissioners in passing the resolution instructing the superintendent of roads to remove plaintiff's fence were in session and acting in their official capacity.
The court is of the opinion, however, that this error was rendered innocuous, as the undisputed evidence shows that they were acting officially in ordering the fence removed, however, without jurisdiction of the subject-matter or the person. Furthermore, the court instructed the jury that plaintiff could only recover actual damage. Stephenson v. Wright, supra.
The expense incurred by the plaintiff in inclosing his grounds after the defendant cut the fence was an element of the injury suffered; and testimony showing the cost of replacing the fence was admissible for the purpose of shedding light upon the amount of the damage plaintiff suffered in the depreciation in the value of his lands. Long-Dist. Tel. Tel. Co. v. Schmidt, 157 Ala. 391, 47 So. 731.
The plaintiff had the right to assume *Page 108 that, if he replaced the fence across the alleged road, defendants would remove it; and on this assumption he was justified in building the fence along each side of the alleged road. Under these circumstances it clearly does not lie in the mouth of the defendants to say that all the expense that plaintiff was justified in incurring was to replace the fence across the road.
If the fact that plaintiff appeared before the commissioners and requested that the order for a change of the road be made would have operated as an estoppel against him to dispute the jurisdiction of the board to make the order, it is not available to defendants in the absence of a special plea of estoppel. Mutual Loan Co. v. Stowe, 15 Ala. App. 293, 73 So. 202.
The evidence shows without dispute that the acts of the defendants were without warrant or authority, and on the mistaken assumption that the road in question was a public road and under the general jurisdiction and control of the board of commissioners of roads and revenue of Mobile county; and the court properly directed a verdict for the plaintiff, as requested in writing.
"In actions for injury to real property, when the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed." Brinkmeyer et al. v. Bethea, 139 Ala. 376,35 So. 996; A. B. A. L. Ry. v. Brown, 158 Ala. 607, 48 So. 73; Abercrombie Williams v. Windham, 127 Ala. 179, 28 So. 387; Sutherland on Damages, §§ 1010-1021.
Where the injury is such as may be remedied by restoring the property to its condition when the trespass was committed, and the cost of restoring the property is less than the depreciation in the value of the land, and the wrong is not attended with such circumstances of aggravation as to authorize the imposition of exemplary damages, and consequential damages are not recoverable in the action under the principles hereinafter stated, the cost of restoring the property is the measure of damages. Sutherland on Damages, § 1018; Hopkins v. American P. S. Co., 194 Mass. 582, 80 N.E. 624; Salstrom v. Orleans B. G. M. Co., 153 Cal. 551, 96 P. 292; Lenforth v. San Francisco G. E. Co., 156 Cal. 58, 103 P. 320, 19 Ann. Cas. 1230; Manda v. Orange, 77 N.J. Law, 285, 72 A. 42.
Where the trespass is attended by only constructive or implied force, in an action of trespass for the injury resulting therefrom, the plaintiff can only recover such damages as directly result from the trespass, and for any consequential damages he may suffer must resort to an action on the case. Ala. Mid. Ry. Co. v. Martin Bros., 100 Ala. 511,14 So. 401; South. Bell Tel. Co. v. Francis, 109 Ala. 224,19 So. 1, 31 L.R.A. 193, 55 Am. St. Rep. 930; Atlanta Birmingham L. Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73. But when the act complained of was attended by such force as will support an action of trespass vi et armis, all the damage suffered by the plaintiff, whether direct or consequential, or whether occurring immediately or some time after the trespass, may be recovered; but where the damages are such as are not the usual consequence of the act, they must be specially claimed. Sutherland on Damages, § 1028; Dickinson v. Boyd, 17 Pick. (Mass.) 78, 28 Am. Dec. 281; Gusdorff v. Duncan, 94 Md. 160,50 A. 574; Eldridge v. Gorman, 77 Conn. 699, 60 A. 643; Eisele v. Oddie. (C. C.) 128 Fed. 941. This doctrine is clearly recognized in the opinion of the court by Head, J., in South. Bell Tel. Co. v. Francis, supra.
No special damages are claimed in this case, and the oral charge of the court as to the measure of damages was erroneous, and was couched in such language as to authorize the jury to award damages for the consequential damage suffered from the depredation of the cattle and sheep upon the plaintiff's orchard.
There was evidence tending to show circumstances of aggravation, such as that the motive prompting the defendants to interfere with the plaintiff's property was to ingratiate themselves into the favor of the community for political reasons, and the question as to whether exemplary damages should have been awarded was for the jury. W. U. T. Co. v. Dickens, 148 Ala. 480, 41 So. 469.
For the error pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.