Central of Georgia Railroad v. Rouse
57 So. 706
Ala.
1912
Check Treatment
ANDERSON, J.

Our statute authorizing a person in the peaceable possession of land, actual or constructive, to file a bill to quiet title to the same was construed in the case of Adler v. Sullivan, 115 Ala. 582, 22 South. 87. It was there said: “The act does not require the complainant to have title by possession; but if he has peaceable possession, under claim of ownership, as contra-distinguished from possession which is disputed or contested, it is all, as to this, the statute requires.” This case has been repeatedly cited and followed by cases, wherein the complainant’s bill has been dismissed, because the proof showed that, Avhether he was in possession or not, it was a scrambling, disputed, or contested possession. — Lyon v. Arndt, 142 Ala. 486, 38 South. 242; Randle v. Daughdrill, 142 Ala. 490, 39 South. 162; Ladd v. Powell, 144 Ala. 408, 39 South. 46; Wood v. Lumber Co., 157 Ala. 73, 47 South. 202; White v. Cotner, 170 Ala. 324, 54 South. 114. This Wood Gase is not opposed to the others, and is in conformity therewith, as there is a distinction between disputing the possession and the right to the possession. If the right to, and not the possession, is disputed, this fact should not defeat the right to maintain the bill; but if the possession itself, as distinguished from the right to same, is *140disputed, then the party whose possession is disputed cannot maintain the bill. Nor is the case of Jordan v. McClure, 170 Ala. 289, 54 South. 415, opposed to the present holding or the authorities, supra, as the opinion expressly states that the act of respondents in posting notices on the land was a mere adverse claim of title; and the opinion further on lays down the correct rule, as follows:. “It requires actual possession or constructive possession; and, while it must be peaceable, it does not mean that the right or title thereto must not be disputed, for that is what the suit is intended to determine and quiet.” This case does not hold that a possession is peaceable when it is disputed, or that the bill can be maintained when the possession itself, as distinguished from the right to same, is being disputed.

The fourth headnote in this case is misleading. It is very question able, if the preponderance of the evidence in the case at bar does not place the possession of the strip in controversy in the respondent, instead of the complainant, when the bill was filed; but whether it does or not, and conceding, Avithout deciding, that the complainant was in possession, it was not such a possession as the statute requires, in order to maintain the bill. There was proof that the strip was surveyed and staked off: as part of the respondent’s right of way soon after the conveyance from the elder Davis — Davis, Jr., the complainant’s grantor, had his lots laid off and bounded to the front by this strip; he and the owners of other lots had their yard fences on the line btween the lots and said strip. There was proof that Davis never claimed the strip, and told parties to whom he sold or was trying to sell lots that the respondent OAvned the strip, and they would never be bothered with houses in front of them. There Ava's also proof that he declined to let a witness cut a certain tree from said strip, be*141cause it belonged to the respondent, and about the only-acts of possession shown by Davis, Jr., was to have the strip cleaned off occasionally while he was accupying the house now owned by the complainant,. Bouse. The only acts of possession shown by Bouse was cleaning off the strip occasionally, and at one time, just before or about the time of the filing of the bill, protesting against leaving logs on same, if the authority to do so was derived from the respondent. On the other hand, there was evidence showing that the respondent went into possession of the right of way under the deed from the elder Davis, kept the stakes at the corner, stopped the complainant’s men from cutting down a tree bn the land, and that it was used repeatedly as a dumping ground for logs brought for shipment, and which were deposited thereon with the consent of and under the authority of the respondent, and without protest or hindrance from Davis, Jr., or the complainant, except the one time mentioned. We hold that the complainant has not shown such a peaceable possession as will enable him to maintain the bill, and the decree of the chancery court is reversed, and-one is here rendered, dismissing the bill of complaint.

' Beversed and rendered.

All the Justices concur.