The complaint consists of three ■counts, two in trespass, and one for the conversion of wood situated on this land. The pleas were the general *293issue and a special plea alleging that defendant (appellant) was the owner of the trees cut and removed by it, of which plaintiff had notice, and that in so doing it exercised its right, and that to remove such trees it was necessary to dig the holes mentioned in the complaint in order to enjoy the defendant’s rights in the premises. Issue was joined on these pleas.
The defendant offered to introduce its deed to “all the timber, standing, growing or being on” the lands, among others, described in the complaint; but the court sustained the plaintiff’s objection. The obvious error committed in this ruling is said to have been rendered harmless by the fact that it was otherwise shown, without dispute, that defendant was the owner of the timber on the land described in the complaint. This would be true but for the further fact that the conveyance also contained this clause: “It is further agreed that the said Wilmer Lumber Company shall have all reasonable right of way over and through said lands for the purpose of cutting and removing said timber by railroad or otherwise.” No testimony appears to have been received on the trial, covering this feature of the rights conveyed to the defendant and subject to which plaintiff, some of the testimony tends to show, acquired a title to the soil in question. We do not think the error committed in the exclusion of the deed was cured.
If the ownership of the timber was with the defendant, it had the “right to enter and remove the timber, doing no damage, and committing no trespass, beyond what was necessary to accomplish” the removal of its property. Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776; Goodson v. Stewart, 154 Ala. 660, 46 South. 239. The proof showed that defendant owned the “timber.” What was within that term, and what without, was necessarily an inquiry of fact, and on the evidence in this *294record it cannot be said that the proof on that inquiry, was conclusive. One witness testified to timber being-long and short leaf pine, and included the size of timber trees six inches in diameter and up, though generally mills use, or regard as being susceptible of conversion into lumber, only trees eight or ten inches in diameter, and above. We do not think on this testimony the court was authorized, if so it did, to take the inquiry from the jury as to what was within the ownership, denominated “timber,” of the defendant. Furthermore, on the evidence admitted, it could not have been conclusively assumed, thus taking the inquiry from the jury, that the material taken was not within the scope of the right of the timber owner as defined in Heflin v. Bingham, supra,
It was not shown conclusively that the digging- was unnecessary damage to the realty, from which, without unnecessary damage or trespass, the defendant had the right to remove its timber. The proof was not conclusive as to the wrongful taking or destruction of the wood.
The record presents a case where the general affirmative charge was given, but with an explanation; whether the explanation nullified the effect of the charge we will not undertake now to say, as it was not demanded.
There were somé tendencies in the evidence from which the jury might have inferred that the plaintiff consented to the commission of the acts complained of. If so he did, no wrong- against his possession or rights could be predicated upon such acts. On this account, special charges 1, 5, and 6 should have been given.
Charge 2 should have been given.
Charge 3 predicated a recovery upon wrongful entry by defendant; whereas, the plaintiff might have recovered for the unwarranted invasion of the possession by *295unnecessary damage or trespass in taking its timber or digging the soil or converting wood not belonging to defendant. This charge was properly refused.
Charge 4 omitted' several elements of possible basis for recovery. It was well refused. ■ '
Charge 7 uses the term “specific damages.” It was calculated to mislead the jury and was properly refused.
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Anderson and Sayre, JJ., concur.