76 Ala. 280 | Ala. | 1884
— The action of forcible entry and detainer can be sustained only by proof of an actual possession of the premises sued for, held by the plaintiff prior to the unlawful entry made by the defendant. It can not be'sustained by showing a mere constructive possession, or such as the law imputes to the owner of the legal title. — Houston v. Farris, 71 Ala. 570 ; Womack v. Powers, 50 Ala. 5 ; Russell v. Desplous, 29 Ala. 308. The forcible entry, therefore, of the owner himself, may constitute an unlawful invasion of the actual possession of a stranger who is a trespasser. — Trial of Titles to Land (Sedgw. & Wait), § 94.
The tract of land, for the possession of which this action was instituted, embraces about two hundred acres, which is shown to have been unimproved, uncultivated, and uninclosed. The plaintiffs showed no written evidence of title, or color of title.
"We may observe, in advance, that there is no room in this case for the application of the principle, that where one is in actual possession of a portion of a given tract of land, he will sometimes be held in law to be in possession of the remainder. This rule never applies, unless the occupant holds under deed, or other color of title, and there is no antagonistic or adverse possession. The deed, or other paper title, is important to define the extent or boundaries of his claim and possession. Bell v. Denson, 56 Ala. 444 ; Bohannon v. The State, 73 Ala. 47, and cases cited, p. 50 ; Trial of Title to Land (S. &. W.) §§ 728, 768 ; Farley v. Smith, 39 Ala. 38.
In the absence of any color of title on the part of the plaintiffs, it is very clear that actual occupancy by them, or their agents, was not shown by the fact that they had previously made a partial survey of these lands, which was providentially interrupted before completion. This was done by running certain lines, without staking off the land. — Sanky v. Noyes, 1 Nev. 68 ; Thompson v. Burhaus, 79 N Y. 93 ; Crosby v. Pridgen, at present term ; Childress v. Calloway, ante, pp. 128-32. The same may be asserted as to the permission given by plaintiffs, and their testator, to certain parties, three or four different times, to burn lime on an undescribed portion of these lands, the wood used in the burning being obtained elsewhere. If these acts should be held to show actual occupancy, or possession, it could not be held to cover the whole of the tract in controversy. Iiow far we should limit such alleged possession, we have no means of knowing from the evidence, nor could the jury know with any degree of certainty.
It is our opinion, however, that the plaintiffs showed actual possession of the log-house which was in process of construction on these lands. The workman who was employed to build this house must be regarded as the servant of the plaintiffs for this purpose, and his possession was their possession, just as fully as the possession of the tenant is that of the landlord ; or of an agent, authorized to occupy, is that of his principal. The temporary cessation of the work by the builder was not an abandonment of his possession. In this aspect of the case, the last charge requested by the plaintiffs was improperly refused by the court. Possession is a fact ordinarily continuous in its nature, and when once established by proof, it must be presumed to continue until a different presumption is raised by contrary proof. — 1 Greenl. Ev. (14th Ed.) § 41, and note b; M. & W.
Reversed and remanded.
