Aldrich Mining Co. v. Pearce

• Citation: 52 So. 911,169 Ala. 161
• Parties: ALDRICH MINING CO. v. PEARCE.
• Decision Date: 21 April 1910
• Court: Supreme Court of Alabama

52 So. 911

169 Ala. 161

ALDRICH MINING CO. v. PEARCE.

Supreme Court of Alabama

April 21, 1910

Response to Application for Rehearing, June 30, 1910.

Appeal from Circuit Court, Marion County; A. H. Alston, Judge.

Action by James P. Pearce against the Aldrich Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John C Forney, A. T. London, and Bankhead & Bankhead, for appellant.

W. C Davis and S.D. & J. B. Weakley, for appellee.

MAYFIELD J.

This was an action of trover for the conversion of 3,000 tons of coal, mined from the S.E. 1/4 of the S.E. 1/4 of section 10 township 12, range 12 west, in Marion county, Ala. The case was tried upon the general issue in short, by consent, with leave for defendant to give in evidence anything that would be a defense; and for the plaintiff to give in evidence anything that would be good as a replication if specially pleaded. The trial resulted in verdict and judgment for plaintiff for $1,023, from which judgment the defendant appeals, here assigning various errors on the part of the trial court.

The plaintiff, Pearce, claimed to be the owner of the S.E. 1/4 of section 10, township 12, range 12 west, which was contiguous to, and just west of, the S.W. 1/4 of section 11 of said township and range; and averred that the defendant company had mined across the section line, between sections 10 and 11, onto plaintiff's lands, thereby converting his coal.

It appears that the real controversy between the parties, and that upon which the rights of both parties depended, was the location of the true boundary line between the S.E. 1/4 of the S.E. 1/4 of section 10, and the S.W. 1/4 of the S.W. 1/4 of section 11, this being a part of the section line between such sections--the defendant claiming that the true line was one running north and south from a certain red oak tree known for many years as the "Red Oak Corner"; that this tree bore the marks and hacks of surveyors, as if it were a monument or witness tree. While it had been known as such for many years, it was not conclusively shown to have been so made by the original survey of the United States.

On the other hand, plaintiff introduced several surveyors, who had made surveys of the lands in question in trying to ascertain and fix the boundary lines of these lands; and, while their surveys did not exactly coincide, they all located the boundary line between the S.E. 1/4 of the S.E. 1/4 of section 10, and the S.W. 1/4 of the S.W. 1/4 of section 11, at some distance east of the line run north and south from the "Red Oak Corner." The testimony of these surveyors was to the effect that they could not make the "Red Oak Corner" check up with the original field notes of the government survey. These surveys offered by plaintiff, as to the location of these boundary lines, appear to have been made after the coal was mined and preliminary to the bringing of this action.

The coal in question was taken from this strip of land lying between the two lines, which the parties respectively claimed to be the boundary line between the two 40's of land. If the "Red Oak Corner" line was the true line, then clearly defendant had not taken any of plaintiff's coal; but if, of any of the later surveyed lines, any one was the true line, then plaintiff was entitled to recover, provided he had shown title to the S.E. 1/4 of the S.E. 1/4 of section 10.

The plaintiff claimed to have acquired title by adverse possession, under color of title, through a deed executed to him by one Butler and wife, in 1875, but which did not pass the title thereto, because it was the homestead of Butler at the time, and because the instrument was not properly acknowledged by Butler's wife. This color of title attempted to convey the whole of the S.E. 1/4 of section 10. The plaintiff appears never to have been in the actual possession of the particular strip of land in question, but he claims that, through his tenants and others holding under him, he had been in the actual possession of a part of this quarter section conveyed for 10 years, and that this color of title extended his possession to the whole of the quarter section which included the land in question.

The defendant appears to have been in the actual possession of the strip of land in question, prior to, and, of course, at the time the coal was mined; certainly so, as for the purpose of mining the coal, claiming also to have been in possession of the surface. But as to this latter contention there is some dispute, the plaintiff claiming that the defendant's possession (whatever it was) was not adverse as to him, but was only the possession of a contiguous owner not knowing the true boundary line and only claiming to the true boundary line, wherever it might be found to be. The defendant never claimed title or right to any part of the S.E. 1/4 of the S.E. 1/4 of section 10, until it purchased and acquired deed from Butler and wife to the S.E. 1/4 in June, 1903, just a short while before the bringing of this suit; but it claimed on the trial, and its proof tended to show, that it claimed the land and coal in question as being a part of the S.W. 1/4 of the S.W. 1/4 of section 11--not by this description, but as being a part of the 40 acres just east of the S.E. 1/4 of the S.E. 1/4 of section 10. But all the proof shows that whatever actual possession there was of the particular strip in question, as distinguished from constructive possession, was in the defendant. If the plaintiff had title to it, it was by virtue of 10 years' continuous adverse possession acquired under his color of title prior to the taking of the coal, and his possession was that acquired by his being in the actual possession of a part of the quarter section, and that possession being extended to the land in question by virtue of his color of title. If plaintiff never acquired the title to any part of the S.E. 1/4 of section 10, then of course he never acquired title to the part in question. If the part in question was not a part of the S.E. 1/4 of the S.E. 1/4 of section 10, but was a part of the S.W. 1/4 of the S.W. 1/4 of section 11, then of course he had no title thereto, though he acquired title to the S.E. 1/4 of said section 10. In other words, to support a judgment for plaintiff, the jury must have determined that plaintiff had title to the particular land in question. This they could only do, by determining whether or not he acquired the legal title to the S.E. 1/4 of section 10 by adverse possession for 10 years; and if he did so acquire title thereto, then was the strip in question a part of that quarter section, or was it a part of the S.W. 1/4 of the S.W. 1/4 of section 11? In other words, they must have found the boundary line between sections 10 and 11, at least to the extent of saying whether the land in question was east or west of that line.

The serious questions necessarily involved in this case are: (1) Can the title to land be determined in an action of trover? (2) Could the plaintiff recover in this action, without a determination of the title to the land from which the coal in question was mined? The first question we think is well settled, by numerous authorities, in the negative.

The owner of the freehold cannot maintain a personal or transitory action to recover a part of the freehold, or damages for conversion thereof, which has been converted into personalty by a severance from the freehold, if at the time of the severance he has not the actual or constructive possession of the land. Cooper v. Watson, 73 Ala. 254; Fielder v. Childs, 73 Ala. 567; Beatty v. Brown, 76 Ala. 267; Street v. Nelson, 80 Ala. 230; Rogers v. Brooks, 99 Ala. 34, 11 So. 753; Keller v. Bullington, 101 Ala. 270, 14 So. 466; Stewart v. Tucker, 106 Ala. 321, 17 So. 385.

It is true that the above authorities, and others, hold that the plaintiff cannot recover because the defendant was in the adverse possession at the time of the severance; but the true reason of the rule, as often stated in these cases, is, not that the adverse possession itself defeats the action, but that it requires or necessitates an inquiry into the legal title to the land, which all the authorities hold cannot be done in a purely personal and transitory action. If that could be done, the titles to land in one county could be tried by an action in another, or titles to land in this state could be determined by personal action in another. Cooper v. Watson, 73 Ala. 254, and cases there cited and quoted. The rule is general if not universal that titles to land cannot be inquired into in purely personal actions. There are appropriate remedies provided for contesting and trying titles to land, which must be resorted to. It would be attended with perplexing confusion and practical mischief if parties were...