62 So. 519 | Ala. | 1913
Complainants in the court below, appellees here, sought by their bill to clear up and settle doubts and disputes concerning land which they claimed to own, and to enjoin, pendente lite, alleged repeated trespasses by which the timber upon the land was being destroyed. It was averred that the timber constituted the chief value of the land. The chancellor, after a submission upon pleading and proof for final decree, reached the conclusion that neither the bill nor the evidence taken in support of it showed that peaceable, uncontested possession essential to relief under the statute au
On due consideration of the peculiar facts of this case,' we think defendants have been assigned a position of unmerited disadvantage, and that the burden of the contemplated action at law should have been put upon the complainants. The parties on either side are claiming under paper titles which reach back to the time of the Spanish sovereignty in that part of the state. But their titles do not cover an identical tract of land. Their grants overlap, and the controversy relates to a tract of land common to the overlapping grants. As Ave read the record, the dispute is limited to an even more restricted area. Bayou Jessamine, referred to in some of the old grants as Bayou Forbeau, runs through the land common to the two colors. Complainants’ actual pos
This court has often said that, except as limited by other adverse possessions, the possession of one who holds under bona fide color of title will be extended to the limits described in his color. Many cases to that effect are cited in Marietta Co. v. Blair, 173 Ala. 524, 56 South. 131. We have also said that the possession so extended by color is actual, not constructive, to the limits of the color. — Marietta Co. v. Blair, supra. That was also the language of Bailey v. Blacksher Co., 112 Ala. 257, 37 South. 827, and of some of the cases cited in Marietta Co. v. Blair, supra, and the two cases named are referred to by the chancellor as authority for his decree.
The decree properly fixed the character of complainants’ standing upon the tract claimed by them north of the bayou. It may be conceded, also, that the same is true of that part of the tract covered by complainants’ color of title south of the bayou and lying outside of the color shown by defendants. Nor do we make any question about the soundness of the general principles enunciated in the cases aforementioned. But we think they afford no solution of the question raised in respect
Defendants’ possession below the bayou has not been as long continued as that of complainants above, and that of the latter has in times long past been demonstrated by acts of OAvnership of which, it may be inferred, the land south of the bayou is not capable. But during the 20 years last past the two possessions have been of a sort, that of complainants not extending beIoav, nor that of defendants above, Bayou Jessamine. On their respective sides the parties themselves, and their lessees and agents, have at frequent intervals, as the seasons and the stage of the Avater permitted, cut timber, and carried it away to market. Defendants and those through whom they claim have frequently visited the property, hunted over it, warned away trespassers, and have delimited their claims by surveys. There Avas also testimony on behalf of defendants tending to show that on tAvo or three occasions complainants have disclaimed title to any part of the land south of the bayou. The evidence of these facts, which we have undertaken to state in a general way only, is spread over many pages of the record, and is furnished by many witnesses. We have not found it profitable to ‘go further into de
Reversed and rendered.