57 So. 377 | Ala. | 1912
This is a common-law action in ejectment by the Southern Mineral Land Company, appellee here, against the Montevalio Mining Company, appellant, to recover the possession of a 40-acre tract of land, namely, the S. W. % of the S. E. % of section 12, township 22 S., range 4 W., in Shelby county. The defendant, entering into the consent rule, pleaded not guilty, and also the statute of limitations of 10 years, setting up adverse possession under color of title. The plaintiff introduced in evidence a' complete chain of paper title from the government down to itself, and upon this evidence alone rested its case, maldng no pretense of actual possession in it or in any of its predecessors in grant, but relying upon constructive possession under its legal title.
For the purpose of showing color of title, the defendant introduced in evidence deeds embracing proximately 1,400 acres which included the 40-acre tract or sub
The question presented is that of a vendor conveying by single deed two distinct tracts of land, to one of which he has the legal title, and to the other he has not the legal title, and how far and to what extent actual possession by the vendee under the deed of the tract to which the vendor had the legal title may be extended to the other tract described in the deed to. which he had no legal title.
This question was under consideration in the case of Woods v. Montevallo Coal & Transportation Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393, where it was said by this court (speaking through Somerville, J.) :
The deeds introduced in evidence by the defendant without more” (italics ours) avouIc! have been insufficient to have extended the defendant’s possession constructively to the 40-acre tract in dispute, and of which the plaintiff had constructive possession under its legal title, so as to effect a disseisin of the plaintiff. And, if this had been all of the evidence, the court would have been justified in giving the general charge in favor of the plaintiff. But there was more. In connection Avith the deeds introduced by the defendant as color of title, there Avas evidence on the part of the defendant which tended to shoAV an asserted claim of ownership by the defendant and its predecessors in grant for 25 years or more, and that such claim of OAvnership Avas one of general notoriety. There Avas evidence, also, which tended to shoAV acts of dominion by the defendant and its predecessors in the cutting of timber on the tract in dispute for mining purposes on adjacent lands of the defendant; such cutting of timber by the defendant being at divers times and extending over a period of more than 20 years. It was open for the jury to infer from all of the evidence that the land Avas only suitable for timber,
In this state of the evidence^ under the principles laid down in Woods v. Montevallo Co., supra, the question of adverse possession of the land in dispute by the defendant became a question for the determination of the jury, and the trial court therefore erred in giving the general affirmative charge in favor of the plaintiff. For this error the judgment must be reversed, and the cause remanded.
Reversed and remanded.