¶1One who cuts trees on the land of another, but who at the time is under the honest belief that the land is his own, or that it is the land of a third party who has consented to such cutting on his land, is not liable for the penalty prescribed by section 4137 of the Code.—Russell v. Irby, 13 Ala. 131; Postal Telegraph Co. v. Lenoir, 107 Ala. 640; Williams v. Hendricks, 115 Ala. 277. The 2d charge requested by defendant should, therefore, have been given.
¶2Charge 3 given for plaintiff when referred to the evidence is, to say the least, misleading. A. may willfully and knowingly cut trees which are in fact on the land of O. and -without O.’s consent, and yet not incur the statutory penalty, if he did not know it- was the land of C. 'but supposed it was his own, or that it was IP’s, and D. had consented to A.’s cutting trees off his land. The charge should have hypothesized that the defendant willfully and knowingly cut trees on plaintiff’s land without her consent.
¶3Reversed and remanded.