Chesser v. Harrelson

• Decision Date: 29 October 1898
• Citation: 24 So. 716,119 Ala. 435
• Parties: CHESSER v. HARRELSON.
• Court: Alabama Supreme Court

24 So. 716

119 Ala. 435

CHESSER v. HARRELSON.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Covington county; J. W. Foster, Judge.

Action by T. E. Chesser against J. J. Harrelson. From a judgment for defendant, plaintiff appeals. Affirmed.

Upon the introduction of all the evidence, the plaintiff asked the court to give the general affirmative charge in his favor, and duly excepted to the court's refusal to give the same as asked. The court gave the general affirmative charge asked for the defendant, and to the giving of this charge the plaintiff duly excepted. The plaintiff appeals from the judgment in favor of the defendant, and assigns as error the refusal to give the charge requested by the plaintiff, and the giving of the charge asked by the defendant.

B. H. Lewis, for appellant.

Morgan D. Jones, for appellee.

McCLELLAN, J.

One fact absolutely essential to plaintiff's right to recover is his actual possession of the land in controversy prior to defendant's alleged forcible entry upon it. Plaintiff had no color of title, and the only evidence of possession-aside from repute, which cannot establish any sort of possession, and the facts that defendant many years ago verbally agreed to sell him the land, and thereupon surrendered possession to him, which facts do not prove actual possession-was that on three or four occasions from 1875 to 1890, a period of 15 years, plaintiff had cut and removed, or sold to others, who cut and removed, some timber from the tract of land. This was clearly not such possession as even this land, valuable principally for its timber, reasonably admitted of, and was therefore not such actual possession as was essential to plaintiff's recovery. And the judge below, in effect, properly so instructed the jury. Affirmed.