Cogsbill v. Mobile & G.R. Co.

• Decision Date: 15 June 1891
• Citation: 9 So. 512,92 Ala. 252
• Court: Alabama Supreme Court
• Parties: COGSBILL v. MOBILE & G. R. CO.

9 So. 512

92 Ala. 252

COGSBILL v. MOBILE & G. R. CO.

Supreme Court of Alabama

June 15, 1891

Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.

Action by appellant, Mrs. Mary H. Cogsbill, against appellee corporation, to recover the possession of a small strip of land, with damages for its detention. The strip of land sued for was about 65 or 70 feet in width, and about 150 feet long, extending through a 4-acre field claimed by plaintiff and was defendant's road-bed and right of way, on which a house had lately been erected by defendant. Plaintiff based her claim on the continuous and adverse holding of the strip ever since 1838. Defendant based its defense upon the adverse possession, which was secured under color of title given to it by virtue of condemnation proceedings. The facts of the case are substantially the same as those recorded in the statement of facts in the former appeal of this case in 85 Ala. 456, 5 South. Rep. 188, and special reference is here made thereto. Upon the introduction of all the evidence the court gave the general affirmative charge for defendant. There was judgment for defendant, and plaintiff appeals.

J F. Waddell and Watts & Son, for appellant.

Norman & Son, for appellee.

WALKER J.

When this case was here on the former appeal it was held that the circuit court had erred in refusing to give the general affirmative charge in favor of the defendant. Railroad Co. v. Cogsbill, 85 Ala. 456, 5 South. Rep. 188. The giving of that charge on the last trial is now assigned as error. The plaintiff did not claim to have any paper or record title to the land. She relied alone upon her former possession. The uncontroverted proof showed that the defendant had been in actual possession of a portion of the land sued for since 1869, and that prior to this actual possession it had acquired color of title to the entire tract. Possession taken after the acquisition of color of title is to be referred thereto, and is to be construed as co-extensive with the boundaries described in the instrument or record constituting such color of title. Lucy v Railroad Co., (Ala.) 8 South. Rep. 806; Burks v Mitchell, 78 Ala. 63; Stovall v. Fowler, 72 Ala. 78. There is no support for the contention now urged that the evidence failed to show that the defendant claimed to own the land of which it has been in possession for so long a time Its acts in building its railroad and other structures appurtenant thereto on portions of the tract, and in maintaining an exclusive control and dominion, not in subordination to any one else, clearly evidence the continued assertion...