76 Miss. 651 | Miss. | 1898
delivered the opinion of the court.
This was an action of trespass brought by the appellee against the appellants for cutting trees on a strip of land lying along the line between the northwest J of section 14, and the west £ of the northeast J of the same section.
The appellee, on the trial below, introduced no record or paper title to the northwest J, but did offer evidence that he claimed the same. In the absence of record or paper title, the appellee could only have maintained his action by establishing a concurrence of possession and claim of ownership, but this he totally failed to do. It is perfectly shown by the evidence offered by appellee, as well as that introduced by appellants, that Mrs. Gathings, the mother of one of the appellants, and by whose authority the trees were cut, had claimed this disputed strip of land, and had been in the open, notorious adverse possession of the same for about thirty years. She had cleared, fenced and cultivated the north end of the strip, and had cut from the uninclosed south end of the strip timber for all sorts of farm and domestic purposes wherever and whenever she wished, and all this with the knowledge of appellee, and without objection on his part, except on one occasion nearly sixteen years ago. On that occasion, and after what is called the Morrow line had been surveyed and run, the appellee told Mr. Gathings, the husband and agent of Mrs. Gathings, that he, Gathings, was on his, Miller’s, land, when Gathings replied that he had been there too long to move. “I did not contest with him about it. It was a small strip, and was too little a thing for me to contest with a man like Sampson Gathings about. ’ ’ And so the matter remained for nearly sixteen years thereafter, and Gathings continued to claim and possess the disputed strip. All the evidence on both sides shows that Mrs. Gathings claimed the strip, and that she occupied it and exercised the usual acts of ownership over it for twenty or thirty years, and her claim was thus unassailable.
The peremptory instruction asked by the appellants should
Reversed.
