Ashford v. McKee

Decision Date13 February 1913
Citation183 Ala. 620,62 So. 879
PartiesASHFORD v. McKEE.
CourtAlabama Supreme Court

Rehearing Denied June 30, 1913

Appeal from Circuit Court, Limestone County; Thomas W. Wert, Judge.

Ejectment by Thomas T. Ashford against Simp McKee. Judgment for defendant, and plaintiff appeals. Affirmed.

Allen &amp Bell, of Birmingham, and J.E. Horton, Jr., of Athens, for appellant.

Sanders & Thach, of Athens, for appellee.

DOWDELL C.J.

1. This is an action of ejectment between coterminous proprietors involving a strip of land containing about 26 acres. Ashford's muniments of title called for land in the northwest quarter of section 36, and McKee's muniments called for land in the southwest quarter, just south of Ashford. Ashford sought to show by his evidence that this 26-acre strip of uninclosed woodland lay north of the line which had been long recognized as the quarter section line by him and his predecessors in title and also by McKee's predecessors, and as being the true line between the two properties, and that he and his predecessors had been in possession down to this line, and had exercised ownership by cutting timber for boards, rails, etc., at various times covering a period of many years, and that, even if this disputed tract lay south of the real quarter section line, he had title by adverse possession. McKee sought to establish that the disputed tract was on the south side of the true quarter section line, and really formed a part of the southwest quarter, which had been conveyed to him; that it had never formed a part of the northwest quarter, as shown by the government field notes; that the disputed tract was uninclosed woodland which had never had any timber cut off of it until done by the McLain Lumber Company, his grantee of timber rights, at a comparatively recent period. There was evidence tending to support both the theory of the plaintiff and that of the defendant. Under this state of the evidence the refusal by the court below of the affirmative charge in favor of the plaintiff was without error. In this connection, in view of the insistence of counsel for appellant that the affirmative charge should have been given, it will be noted that Caldwell, a surveyor, and witness for plaintiff, admitted that: "According to the government survey and field notes, the land in controversy lies in the southwest quarter of section 36, and that Mr. Ashford's deeds call for land in the northwest quarter." To the same effect, another surveyor, Geo. Motz, a witness for plaintiff, testified. The plaintiff himself testified that he had been paying taxes on the northwest quarter, and stated: "I have not intended to claim in section 36 any land for which I have no conveyance." The jury might well have inferred from this evidence that the disputed tract was south of the true quarter section line, and that, although plaintiff might have exercised acts of ownership over it, he did not intend to claim it if it was in fact not within the description of his conveyances. It is true plaintiff added that: "I have always considered that I bought, and have always claimed to the old line and to the true line. I bought my land down to the original line, and it was my intention to pay taxes down to there."

The rule in this state, early laid down in Brown v. Cockerell, 33 Ala. 38, was expressed in that case as follows: "If a party occupies land up to a certain fence, because he believes it to be the line, but having no intention to claim up to the fence if it should be beyond the line, an indispensable element of adverse possession is wanting. The intent to claim does not exist, and the claim which is set up is upon the condition that the fence is upon the line." See, also, Humes v. Bernstein, 72 Ala. 556; Alexander v. Wheeler, 69 Ala. 332; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am.St.Rep. 182; Holt v. Adams, 121 Ala. 668, 25 So. 716; Walker v. Wyman, 157 Ala. 482, 47 So. 1011. All of these cases recognize the doctrine that when parties agree upon a line as a dividing line, and each claims up to it as such, with knowledge of such claim by the other coterminous owner, the claim becomes hostile. But, as was remarked in the case first above cited, although "possession is prima facie evidence of title, and a recovery in ejectment may be had upon it," yet, "when it is shown that the true title is in another, the intendment in favor of the possession ceases. The law, then, will not presume that the possessor does the wrong of disseising the true owner. It devolves upon him the burden of showing the hostility of his possession to the true owner."

One John Morgan, a witness for the defendant, testified that the McLain Lumber Company, to whom McKee sold the right, did the first cutting on the disputed tract; that he saw the negroes cut the board timber testified about, and that it was not on the disputed tract, but north of it. This piece of testimony alone, if believed by the jury, afforded some ground of possible inference that the witnesses for plaintiff might have been mistaken as to the cutting of timber on this strip of land. We might call attention to other parts of the quite voluminous testimony showing a conflict in the evidence on material issues in the case, but suffice it to say that a careful perusal of the record convinces us that the trial court should not be put in error for refusing the affirmative charge. Without intending to intimate, by what has been said in support of the court's ruling, any opinion as to the correctness of their verdict, we think the case was properly submitted to the jury.

2. The first assignment of error goes to the exclusion by the court on defendant's motion of the answer of the witness Motz to the question: "Do you know anything about the occupancy of this land previous to the time of making the survey?" The answer, which was excluded, was: "Nothing except this is recognized as his (Ashford's) land, and he exercised ownership over it." The answer was not responsive to the question, and was otherwise objectionable as involving a conclusion of the witness. Furthermore, this witness was a surveyor from another county, and there is nothing in the evidence to show any opportunity on his part for knowledge of the previous exercise of ownership, leaving his answer as the bald expression of opinion.

It has been held by this court that where the character of possession is in issue, it cannot be proved by general reputation, nor by the opinion of witnesses as to the actual condition of the property. Benje v. Creagh's Adm'r, 21 Ala. 151.

3. The second assignment of error is based on the court's sustaining the objection of the defendant to the question to the witness High, "Was she in the exclusive possession of the land down to the lower line?" This ruling was free from error. As was said in the case of Driver v. King, 145 Ala. 595, 40 So. 319: "It is true that possession is a fact to which a witness may testify. Eagle & Phoenix Co. v. Gibson, 62 Ala. 369; Steed v. Knowles, 97 Ala. 579 . But we have never held that a witness may testify that a person was in the open and notorious possession of land. The character of possession was a fact to be determined by the jury from the evidence, and, to aid them in reaching a conclusion as to openness and notoriety of possession, it was competent for witness, who had testified to the fact of possession, to state how the defendants used the land--what acts of ownership they exercised over them--and whether frequent or otherwise. But it is clear that for a witness to testify that a person was in the open and notorious possession would be but the echo of the opinion of the witness, and a usurpation of the functions of the jury (citing Benje v. Creagh's Adm'r, supra)." It is plain that this principle would render this question as to "exclusive possession" objectionable.

The sixth assignment is based upon sustaining defendant's objection to a similar question propounded to the plaintiff as to whether he had been in "exclusive possession" of the land since he purchased it from his mother, and the objection was properly sustained.

The fourth assignment of error relates to the sustaining of an objection to a question as to whether plaintiff's predecessor was in "exclusive control" of the land, and for like reasons this question also was improper. Control, like possession, is a statement of collective fact, which is permissible, but when qualified by such terms as "open and notorious," "exclusive," etc., the realm of mere opinion is entered, and the function of the jury usurped. Woodstock Iron Co. v. Roberts, 87 Ala. 441, 442, 6 So. 349

4. The third assignment involves the question to the witness High, "Was she (Mrs. Ashford) in control of that land at that time?" This was a proper question, but the error in sustaining the objection thereto was cured by the court's almost immediately permitting the witness to testify, as shown by the record, "that Mrs. Ashford was in control of this land, claiming to own it; that no one else beside her claimed to own the land; that Mrs. Ashford was in possession of the land up to the time of her death, which occurred quite a number of years ago." It satisfactorily appears that the plaintiff suffered no injury by this action of the court.

The same thing appears with regard to the question to the witness Johnson (fifth assignment), to which objection was sustained which reads: "State to the jury whether or not, during the time you have known this land, who had had it in possession during the last 15 or 20 years." While the phraseology of this question is a little involved, its meaning is clear, and it constitutes a legal question. While the court sustained an objection thereto, the witness at once proceeded, and was permitted, to...

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