
    Stoudenmire v. DeBardelaben.
    
      Bill in Equity against Husband, for Account of Waste committed on Wife’s Lands during Coverture.
    
    1. Cot,elusiveness of former decision, when assailed on second appeal by assignments of error on affirmed decree. — By express statutory provision, a former decision of this court is not conclusive on a second appeal in the same cause, but the court is required to decide the case without regard to the former ruling (Code, § 683 a); yet, when the former appeal was taken from a final decree in chancery, and that decree was affirmed, and a second appeal is sued out, after the lapse of twelve months from its rendition, from the subsequent proceedings in the statement of the matters of account, the statute does not require nor authorize the court to consider assignments of error based on the former decree, and such assignments will be stricken out on motion.
    
      2. Waste by husband, by removal of houses from wife’s lands; measure of damages, and evidence relating to. — Where the sole legatee and devisee of the deceased wife files a bill in equity against the surviving husband, for an account of waste committed during coverture by the ■ removal of houses from the wife’s lands to his own, the complainant succeeds only to the rights oE the wife, and can only recover the damages which accrued to her; the indirect injury to adjacent river lands belonging to the complainant himself, which were not suitable for residence or cultivation, is not an element of recoverable damages; and the houses having been removed with the consent of the wife, the measure of damages is, not the value of the houses, but the actual injury to the land — that is, the difference in its market value before and after removal.
    Appeal front tbe Chancery Court of Autauga.
    Heard before tbe Hon. S. K. MoSpaddeN.
    Tbe bill in tbis case wa filed on tbe 2d June, 1882, by J. D. Stoudenmire, against Warren L. DeBardelaben; and sought an account of waste, alleged to have been committed by tbe defendant on lands belonging to bis wife, Mrs. Caroline W. DeBardelaben, since deceased, who was tbe mother of tbe complainant by a former busband. Tbe alleged waste
    
      SUPREME COURT [Dec. Term, [Stoudenmire v. DeBardelaben.j was committed in 1872, on a tract of land which Mrs. De-Bardelaben held under the will of her former husband, called the “Home Place,” and consisted in the removal of the dwelling-house and other buildings thereon to the adjoining lands of said Warren L. Mrs. DeBardelaben died in 1878, and by her last will and testament, which was duly admitted to probate in October, 1878, devised and bequeathed all her property, “real and personal, of every kind and description,” to her son, the complainant. W. H. Northington qualified as executor of her will, and continued to act as executor until his death in 1881; and the bill alleged that no other administration had ever been granted, and that there were no debts outstanding against the estate. There was a demurrer to the bill, assigning several particular grounds, which the chancellor overruled; and on' final hearing, on pleadings and proof, at the February term, 1886, he rendered a decree for the complainant, holding that he was entitled to an account of the waste committed by the defendant, and ordering an account to be stated by the register. This decree was affirmed by this court, during its December term, 1886, on appeal sued by the defendant, as shown by the reported case.' — 82 Ala. 574-80.-
    On the subsequent statement of the account by the register, he allowed the complainant to prove, against the defendant’s objection, “that he owned a tract of land near the ‘Home place,’ nearly two miles distant, known as the ‘River plantation,’ the two tracts together having constituted the plantation and homestead of his deceased father, Samuel Stoudenmire; that the river place was considered unhealthy, and, on that account, the buildings on the ‘Home place’ were used by the laborers on the ‘river place’and to this ruling the defendant excepted. The defendant contended before the register, that if he was liable at all for waste, the measure of damages would be “the difference in the value of the lands with and without the houses;” and the testimony introduced by him, as the register reported, showed that this was “about $5.75 per acre, amounting to $948.75, which, with interest for nine years, $673.10, amounted to $1621.85.” The register further reported, “that the complainant offered no evidence for or against this view of the case, but contended that he was entitled to recover reasonable compensation for the injury actually suffered by him — that is, the value of the houses removed by the defendant.” The register so ruled, and reporting that, from all the testimony, the value of tbe houses was $2,500, be ascertained and reported tbat sum witb interest, amounting in all to $4,300, as tbe damages tbe complainant was entitled to recover. To eacb of these rulings tbe defendant reserved exceptions. Tbe chancellor overruled, tbe complainant’s exceptions to tbe report, and sustained tbe defendant’s; and tbe report having been corrected and confirmed, be rendered a decree for tbe complainant for $1,621.85, as tbe amount of bis damages witb interest.
    From this decree tbe complainant appeals, and assigns as error tbe rulings of tbe chancellor on the register’s report, overruling bis exceptions and sustaining tbe defendants. Tbe defendant also appeals, and assigns as error tbe decree bolding him liable at all for waste. Tbe complainant moved to strike out tbe several assignments by tbe defendant based on tbe former decree which was affirmed by this court.
    Brioeell, Seüvtple & Gunter, for the complainant below.
    (1.) Tbe complainant should have been allowed to prove tbe use to which tbe bouses were applied for tbe benefit of tbe river lands, as one element of value. Yalue is a complicated question, and no rule can be formulated which will apply to all cases; but, as a general rule, compensation to tbe owner is to be estimated by reference to the uses for which tbe property is suitable — tbat is, what it is worth from its availability for valuable uses. — Boom Co. v. Patterson, 98 U. S. 408. (2.) Tbe complainant is entitled to recover, not tbe diminution in tbe value of tbe land, but tbe value of tbe bouses removed, as if timber bad been cut and removed. VanDensen v. Young, 29 N. Y. 33. Any other rule would fail of giving compensation, and would enable tbe wrongdoer to take advantage of bis own wrong. (3.) On tbe merits of tbe case, tbe former decision is conclusive. Tbe decree from which tbe former appeal was taken, was final, and was affirmed by this court. All assignments of error questioning its correctness should be stricken out.
    Watts & Sons, for tbe defendant.
    (1.) By express statutory provision, this court is required to disregard its former decision in tbe case, and to consider and decide tbe questions involved as if now presented for tbe first time. Code, § 683 a; Moulton v. Reul, 54 Ala. 328. Tbe statute is highly remedial, and it should receive a liberal construction. Where tbe rights of third persons have not intervened, the former decision is entitled to no weight, but the court is required to disregard it, if deemed erroneous. A construction which would exclude from its operation such cases as this, would emasculate it — would destroy the greater part of its beneficial effects. (2.) On the merits of the case, as disclosed by the whole record, the defendant contends, that the bill ought to be dismissed — that the complainant shows no right of action in himself; that the right of action, if any, was in the personal representative of the deceased wife; that the right of action, in favor of the wife herself, was barred by the statute of limitations before her death; and that she never had a right of action, because the houses were removed by her consent, and with her active participation. — 6 Wait’s Ac. & D., 238, 251-5; 4 Kent, 76; 29 Mo. 327; 3 Mur. (N. C.) 511; Sunt v. Sill, 37 Maine, 363; Robinson v. Wheeler, 25 N. Y. 253; 2 McCord’s Ch. 137; Peterson v. Clark, 15 Johns. 20$; Beatty v. Abercrombie, 18 Ala. 9; Kelly v. Kelly, 9 Ala. 908; Sullivan v. Laioler, 72 Ala. 68; Knotts v. Tarver, 8 Ala. 743; Bussell v. Little, 28 Ala. 160; 25 Maine, 531. (3.) The complainant claims damages for alleged waste committed on the “home place,” and the indirect injury thereby caused to his own lands, which were not a part of that place, is outside of the issue. (4.) The measure of damages, in a case of waste, is the diminution in value thereby caused to the estate. — Sutli. Damages, 392-3; 4 Kent; 76; Clark v. Zeigler, 79 Ala. 340.
   CLOPTON, J.

These are cross appeals. J. D. Stoudenmire, who is complainant in the bill, makes a preliminary motion to strike out the assignments of error relating to the decree of February 8, 1886, assigned by defendant. The contestation on the motion is: complainant insists that the' decree, being final, and having been affirmed at a former term on appeal by the defendant, is beyond the power of the court to open and reconsider on this appeal; and defendant contends, that under the statute, it is the duty of the court to declare the law of the case without regard to any former ruling, or to the time when such ruling was made. The decree of February, 1886, affirmed that complainant was entitled to the equity he seeks by the bill; it settled the equities between the parties, and there only remained a reference by the register for the ascertainment of the amount. By all our decisions, the decree was final, and would support an appeal. — Garner v. Prewitt, 32 Ala. 13; Jones v. Wilson, 54 Ala. 50. More than one year bad elapsed after its rendition before tbe present appeal was sned out; an appeal from tbe decree was barred. Under our uniform ruling and practice in sucb cases, tbe assignments predicated on alleged error in tbe decree of February, 1886, must be stricken out, unless tbe statute invoked operates the abrogation or modification of sucb rule, in cases where there has been a ruling on appeal from a final decree, and tbe case is again brought before tbe court by a subsequent appeal from tbe decree rendered on ulterior proceedings, and for tbe adjustment of incidental or dependent matters. — Bradford v. Bradley, 37 Ala. 453; May v. Green, 75 Ala. 162.

Section 683a of Code, 1886, declares: “Tbe Supreme Court, in deciding each case, when there is a conflict between its existing opinion and any former ruling in tbe case, must be governed by what, in its opinion at that time, is law, without any regard to sucb former ruling of tbe law by it.” Tbe manifest purpose of tbe statute is to abrogate tbe preexisting rule, that tbe principles decided and tbe rulings made on appeal, however erroneous, were tbe law of tbe particular case, and governed tbe inferior court in all subsequent proceedings, and tbe appellate court on a subsequent appeal in tbe same case. — Moulton v. Reid, 54 Ala. 320. But this is the full scope and operation of tbe statute, when construed in connection with other statutes regulating appeal's. It was not intended to repeal, pro tanto, tbe statute of limitations restricting tbe right of appeal; nor to indirectly give tbe benefit of appeal, when tbe right is barred, by authorizing assignments of error purely retrospective in their effect and relation; nor to abrogate tbe well established rule, that a judgment of affirmance is beyond tbe power of this court after tbe expiration of tbe term when rendered, unless suspended by a proper and seasonable application for rehearing. By its terms, tbe statute only contemplated a case properly brought before tbe court for decision by appeal, or other appropriate supervisory proceeding; and only has operation when tbe case thus brought before tbe court a second time involves tbe same principles and questions decided on tbe former appeal, and devolves on tbe court tbe necessity and duty to reconsider and affirm or overrule its former rulings. Tbe defendant appealed from tbe decree of February, 1886, and it was affirmed by this court May 10, 1887. Tbe statute was not designed to impose on tbe court tbe duty, ex mero motu, to revise its former rulings, when tbe same rulings are not presented nor involved in tbe second appeal; and bas no operation wben a final decree on appeal bas been affirmed, tbe term of tbe court bas expired, and more tban one year bas elapsed from tbe rendition of sucb decree before tbe second appeal is sued out by tbe same appellant, from a subsequent decree, merely adjusting tbe matter of account, so as to enable tbe complainant to obtain tbe rights to wbicb be is entitled under tbe first decree, and wbicb does not alter or conflict witb tbe first decree. Tbe motion to strike out tbe assignments of errors must be granted.

Complainant seeks by tbe bill to compel defendant to account for waste committed by removing bouses from tbe land of bis wife, wbicb was lier statutory separate estate. Begarding, as we must, tbe first decree and its affirmance conclusive as to tbe liability of tbe defendant for tbe committed waste, tbe only question wbicb we can properly consider on tbis appeal, relates to tbe basis on wbicb tbe amount of compensation should be ascertained. "We do not propose to state or to attempt to formulate a rule applicable to all cases of waste, but merely to determine what is tbe proper rule of damages under the special circumstances of this case. At tbe time of the alleged waste, tbe land was tbe separate statutory estate of tbe wife of defendant, who was the mother of complainant. She was then living, and tbe waste was solely to her interest and estate in tbe land. Tbe fight of complainant to compensation is not founded on tbe ground, that the waste was an injury to any interest or estate wbicb be then owned in reversion or remainder, or by inheritance, but on tbe ground that be is tbe sole devisee of tbe real and personal property of bis mother, including tbe claim for waste, and that there is, no administration nor debts of tbe estate. DeBardelaben v. Stoudenmire, 82 Ala. 574. Tbe complainant succeeded to and claims in right of bis mother, and is only entitled to sucb damages as she could have recovered.

Sucb being tbe nature and extent of bis right, tbe availability of tbe land for use and occupation by tbe laborers on tbe river plantation of complainant, which was unsuitable for residence on account of unhealthiness, can not be regarded or estimated as an element of damage. Tbe river plantation was not owned by tbe mother of tbe complainant during her life-time, and tbe impairment of tbe availability of tbe land for sucb use by tbe laborers on tbe river plantation was not an injury to her interest or estate, except that tbe contiguity of tbe land to an unhealthy place may be a proper consider-

ation in estimating tbe market value of tbe land at tbe time of tbe removal of tbe bonses; bnt can not be otherwise taken into account in adjusting tbe compensation to be allowed complainant.

Tbe evidence shows that tbe bouses were removed with tbe consent, if not by direction, of tbe wife of defendant. It is. true tbe defendant has tbe benefit of tbe bouses, being located on bis land; but this does not, of itself, make him responsible for tbe value of tbe bouses, as for a conversion. If removed with her consent, there was no conversion as against tbe mother of complainant. Evidence of their value may be relevant, as affecting tbe inquiry in regard to the injury done to tbe land. But, should the value of tbe bouses be adopted as tbe rule of damages, tbe complainant would recover, as shown by tbe evidence and tbe report of tbe register, compensation for tbe waste committed by their removal; exceeding tbe entire value of tbe land with tbe bouses remaining on it; which would be unjust to defendant. Under tbe circumstances of tbe case, shown by tbe evidence, tbe complainant is not entitled to recover more than tbe actual damages suffered by tbe mother, which consists in tbe injury done tbe land — its diminution in value — by tbe removal of tbe houses; that is, tbe difference between tbe market value before and after tbe bouses were removed. — Chipman v. Hibberd, 6 Cal. 162; Ackey v. Hull, 7 Mich. 422; Clark v. Zeigler, 79 Ala. 346. Tbe register reported that tbe difference in value, with and without tbe bouses, is, according to tbe testimony of defendant’s witnesses, including interest, $1,621.85, and that complainant offered no testimony as to such difference in value. Tbe chancellor decreed this amount in favor of complainant; and on a consideration of tbe entire evidence, bis decree appears substantially correct.

Affirmed.  