The plaintiff, appellee here, recovered on the fourth count of the complaint, claiming the statutory penalty under section 6035 of the Code 1907.
The litigated fact in the case is whether the trees in question were cut from the plaintiff's land, and, if so, whether they were cut by the defendant under a bona fide belief that the trees were on his (defendant's) land. The evidence shows that about five years before the trees were cut a dispute arose between the parties over the line between their respective properties, resulting in an attempt to settle the dispute by a survey of the line, and the defendant contends that this resulted in establishing a line by agreement of the parties.
There is much confusion in the evidence as to whether such agreement was reached, and, if so, as to the exact location of the line so agreed upon; whether or not the fence, which was afterwards moved, was placed on the agreed line, and whether or not the fence was moved by the plaintiff or the defendant. Some of the evidence tends to show that some of the stakes set in the attempted survey were moved without the consent of the plaintiff, and that defendant changed the fence, and, in so doing, did not put it on the agreed line — if in fact a line was established by the agreement.
On the whole evidence the case was for the jury, and the charges requested by defendant and refused by the court were refused without error. For like reasons the motion for new trial was properly overruled. Garren v. Fields, 131 Ala. 304,30 So. 775; Southern Railway Co. v. Kirsch, 150 Ala. 659,43 So. 796.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *Page 78