95 So. 466 | Ala. | 1923
Statutory ejectment instituted by appellee against appellant. In addition to the general affirmative charge with hypothesis, given at plaintiff's instance, the court, through supplementary statements to the jury, in effect directed a verdict for plaintiff in so far as adverse possession was concerned. Under the tendencies of phases of the evidence designed to show defendant's adverse possession, under color of title, of the quarter section in question for 10 years — an issue of fact for the jury to determine — this action of the court was error. Shipp v. Shelton,
The amended complaint sought the recovery of the land described, the mineral right therein having been severed through conveyance to the Klenol Company in May, 1911. The possession of the mineral interest in situ, where there has been severance in the title of the mineral estate from the surface estate, is not the possession of the surface; and likewise, where such severance in title has been effected, possession of the surface is not possession of the mineral estate. Hooper v. Bankhead,
The certified transcript of the recorded deed from G. W. N. Jones to the plaintiff was inadmissible on seasonable, apt objection; the loss or destruction of the original not being shown. Acree v. Shaw,
The defendant was entitled to elicit from her witnesses, if they were qualified to so affirm the fact, that she was in possession of the land described in the complaint, as well as that she claimed the same during the period of which she sought to predicate her contention of right established through adverse possession. Dorlan v. Westervitch,
Under the amended complaint, no prejudicial error resulted from the admission of the already mentioned deed to the Klenol Company.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *36
