101 Ala. 267 | Ala. | 1893
On March 17th, 1884, Arthur H. Kellar purchased at the judicial sale of the lands of the estate of F. C. Vinson, deceased, made by R. B. Lindsey, the administrator, several hundred acres of land, in Colbert county, Ala., and after report and confirmation, and payment of the purchase money, received, on the 26th day of September, 1887, the deed of the administrator thereto. This sale and deed included the N. W. í of the S. E. i of section 23, township 5, range 11. The intestate, Vinson, had no title to this forty acres, but the same were public lands, the title of the government having never been divested. It is not shown when the report of this sale was made to the probate court by the administrator, and there is no evidence to show that Kellar acquired any color of title, until the execution of the administrator’s deed on the 26th db.y of September, 1887, which was several months after the filing of the bill in this case ; but it is a fact, established by the pleadings and proofs without controversy, that from the time of his purchase in 1884, until the complainant’s, Bulling-ton’s, entry hereinafter referred to, and for a while thereafter, he was ignorant of his want of title, believed he had a good title, and claimed the said forty acres as his own, under said purchase, and that his possession and acts of enjoyment hereinafter mentioned were, in fact, adverse to the world, under claim of ownership by virtue of his said purchase. Kellar owned a large body of lands adjacent and contiguous to the above forty. In the fall of 1886, he verbally sold to Hull a half interest in his lands. They contained valuable stone suitable for quarrying, and in November, 1886, stating the case most strongly for the complainant, by joint act and arrangement, they, Kellar and Hull, by -themselves and employés, went upon said forty acres, believing the same to be their property under Kellar’s purchase at said judicial sale and by his contract1 to sell a half interest to Hull, and began the work of opening a quarry. They erected the necessary buildings, did the grading for a side track to the railroad, opened the quarry and
With this possession and enjoyment of the premises and claim of ownership in force, the complainant, Bullington, on the 1st day of February, 1887, entered, at the land office at Huntsville, as a homestead, the north half of south-east quarter of said section 23, township 5, range 11 west, which, it is seen, includes the said forty acres. The only averment in the bill of possession taken by complainant under this entry is in the following language : ‘' Soon after his said entry thereof he built a dwelling house upon said lands, and moved his family into the same, and ever since thereof your orator and his family have resided on said lands and are now residing thereon, and occupying said lands as a homestead.” His only proof of his possession is his testimony, as follows : “After I entered the land the 1st day of February, I moved on it the 11th day of March, 1887, and have lived on it ever since. I live about one quarter of a mile from said quarry.” A few days after the entry, complainant notified Kellar and Hull of the same, and not to get any more stone off the land. They refxxsed to submit to this demand, but continued working the quarry and claixning the land as before, and Kellar instituted, before the proper tribunal, a contest of the validity of the entry, and prosecxxted the contest tó its final determination in 1891, when the validity of the entry was adjudged. Whilst the complainant and respondents were thus arrayed against each other, each in the assertion of title to the land, the complainant, on June 14, 1887, filed this bill to enjoin the further commission of the alleged trespasses, and for an account and recovery of the value of the stone taken. The chancellor granted the relief prayed, and from his decree the respondents appeal.
It is clear the averments of the bill and the proof thereunder, taken in connection with other averments and proof, touching the possession complainant took after his entry, do not show that the actual adverse possession by respondents of the land they held was displaced
High, in his work on injunctions, discusses very fully the subject of injunction to prevent trespass. In section
In Jerome v. Ross, 7 Johns Ch. 315, canal commissioners being authorized by statute to enter upon any lands contiguous to the canals, and to dig for stone and other materials necessary for' the prosecution of their work, dug up and removed stone from a ledge of rock on complainant’s premises, wrho thereupon'filed a bill for injunction. Chancellor Kent, finally disposing of the case, said : “The objection to the injunction in cases of private trespass, except under very special circumstances, is that it would be productive of public inconvenience, by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine and imprisonment for a further commission of trespass, instead of the more gentle and common law remedy, by action and the assessment of damages by a jury. In ordinary cases, this latter remedy has been found amply sufficient for the protection of property; and I do not think it advisable, upon any principle of justice or policy, to introduce the chancery remedy as its substitute, except in strong and aggravated instances of trespass which go to the destruction of the inheritance, or where the mischief is remediless. ’ ’ The complainant in that case was left to his remedy at law. It will be observed, too, in that case, that there was no question of complainant’s title to the premises.
In the present case, as we have seen, respondents were in possession of the locus in quo claiming title, when complainant acquired his title by entry, and when he filed this bill> ‘ In the absence of some overruling equity, they had a constitutional right to have the validity of their claim of title tried in an issue to the country, before being disturbed in their possession and use of the premises. They were not obliged to yield to the mere notice and demand of an adverse claimant, although the superior title of such claimant may have appeared to be clear. They had the right to have the claimant put his title and their own to a legal test. There is scarcely ground for an argument that complainant was in danger
The maxim, “Nullum tempus occurit reipublicae,” has no application to this case. It is true there can be no adverse possession of land which can ripen into title against the government; and the doctrine of maintenance does not apply against it. Those are questions which pertain to the trial of the title when jurisdiction for that purpose has been properly invoked. Here the complainant has sought the wrong forum. In an action at law he may have the benefit of those immunities, if entitled to them.
Reversed and remanded.