Cox v. Board of Trustees of University of Alabama

• Decision Date: 13 May 1909
• Citation: 49 So. 814,161 Ala. 639
• Parties: COX v. BOARD OF TRUSTEES OF UNIVERSITY OF ALABAMA.
• Court: Alabama Supreme Court

49 So. 814

161 Ala. 639

COX v. BOARD OF TRUSTEES OF UNIVERSITY OF ALABAMA.

Supreme Court of Alabama

May 13, 1909

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Ejectment by the Board of Trustees of the University of Alabama against John H. Cox. From a judgment for plaintiff, defendant appeals. Affirmed.

George Bondurant and Henry Upsom Sims, for appellant.

Hugh Morrell, for appellee.

MAYFIELD J.

The appellee sued the appellant in the statutory action of ejectment to recover certain lands described in the complaint. By consent the defendant disclaimed possession to all the lands except one 40, and as to this 40 the trial was had upon the general issue, which resulted in a verdict and judgment for plaintiff, from which the defendant appeals, and assigns as error the giving of the general affirmative charge for the plaintiff, and declining to give a similar charge for the defendant, and admitting an act of the Legislature of Alabama approved February 5, 1885 (Acts 1884-85, p. 109), in evidence. It appears from the record that the only contest or dispute in the trial that finally resulted was as to the defendant's right to about 3 acres of the 40 acres of land in question; his title and claim thereto being based solely upon the adverse possession of himself and his father under whom he claims title. It appears that the plaintiff's legal title to the land in question was indisputably shown, except as to these 3 acres, and as to that defendant's title or claim was based solely upon that of adverse possession. As stated by the learned counsel for appellee in his brief, there are three fundamental questions involved in this appeal, and upon a settlement of these necessarily depend all other questions involved in this appeal: First. Can title to the lands of the University of Alabama be acquired by adverse possession? Second. If the title to such lands can be so acquired, then what period of adverse possession does the law require, 10 or 20 years? Third. If the period be 10 years, then has appellant shown a sufficient adverse possession to any of the lands for that time to acquire title thereto?

Both the first and second propositions are very important and interesting questions, and we regret that they are not free from doubt; that is to say, they were not within the period of time covered by this action. The question has now been settled by statute (Code 1907, §§ 3859, 4830, 4831); but, of course, these do not apply to the case at bar. It is matter of common knowledge how the University of Alabama acquired title to its lands. They were acquired by acts of Congress and of the Legislature of Alabama. The particular lands in question were acquired as follows: By an act of Congress approved April 23, 1884 (23 Stat. 12, c. 27), which granted 46,080 acres of public lands in the state of Alabama to the state of Alabama, and provided for the selection and location of the same for the benefit of the University of Alabama, to be applied as far as may be necessary to the erection of suitable buildings of said University and the restoration of the library and scientific apparatus heretofore destroyed by fire. It is also a matter of common knowledge that a great number of the buildings and the library belonging to the University of Alabama were destroyed by fire during the Civil War by federal troops. These lands were selected and located by agents appointed for that purpose, which selection and location was approved by the Secretary of the Interior on May 25, 1885, and a patent issued from the United States to the state of Alabama for the lands so selected and approved which vested title thereto in fee simple, subject to the disposal of the Legislature of Alabama as provided by the fourth section of the act of Congress, and with condition of the said act that the said lands are to be applied as far as may be necessary to the erection of suitable buildings for the said University and the restoration of the library and scientific apparatus destroyed by fire, and then to the endowment of the State University, and to no other purposes whatever. By an act of the Legislature approved February 5 1885 (Acts 1884-85, p. 109), the state granted these lands to the board of trustees of the University of Alabama, which board was authorized to dispose of the lands only for the purposes mentioned in the act of Congress and in the manner directed by the act. The defendant's title or claim depended upon the following facts: In May, 1881 defendant's father applied at the United States land office at Montgomery, Ala., to pre-empt certain public lands in the state of Alabama, and pre-emption papers were issued to him for certain lands. his father entered upon about three acres of the land in question at that time, and remained in possession of it until his death, keeping it under fence from the time of his entry; but it must be remembered that this was not a part of the land described in his pre-emption claim, but he had entered upon the same believing that it was, and that the defendant had been in possession of the land, claiming under his father, since the latter's death.

The exact date at which the title to the particular land in question passed out of the United States into the state of Alabama was May 25, 1885. It did not, as contended by counsel for appellant, pass at the date of the act of Congress; for that act expressly provided, when the selection of the lands is made and approved by the Secretary of the Interior, then the title to the same shall vest in the state of Alabama for the use and benefit of the University of Alabama. So by the express provision of the act the title passed upon the date of the approval by the Secretary of the Interior. Nor did it pass on the date of the patent, as contended by counsel for appellee. The patent in this case was a mere evidence of the grant. The act of Congress, as well as the patent itself, shows that the title passed from the United States into the state of Alabama upon the date of the approval by the Secretary of the Interior of the selection and location of the lands, which is shown to be May 25, 1885. The patent thereto was issued by the United States to the state of Alabama of the date of January 16, 1892; but the legal title had passed by virtue of the act of Congress upon the date of the approval of the selection by the Secretary of the Interior, so the exact date at which the statute of limitations could have begun to run against the state was May 25, 1885. Williams Investment Co. v. Pugh, 137 Ala. 347, 34 So. 377. The legal title passed out of the state into the board of trustees of the University of Alabama by virtue of an act of the Legislature of Alabama approved February 5, 1885. So this finally fixes the date at which the statute could have begun to run against the board of trustees of the University of Alabama. Prior to that date the legal title was in the state of Alabama.

The University of Alabama was originally established by act of the Legislature of December 18, 1820. The title of this act was "To establish a State University." By an act of the Legislature of December 18, 1821, the University of Alabama was incorporated. On the 24th day of December, 1822, the Legislature of Alabama passed an act to amend the act which incorporated the University of Alabama. There were various other legislative acts of Alabama relating to the University, which we find digested in Aiken's Dig. pp. 427-436, and Clay's Dig. pp. 583-589. These laws or previous statutes relating to the University, or a part thereof, were codified and rewritten, and appear in the Code of 1852 as sections 383, 384, 547, 548, 834-852; but, by virtue of section 10 of that Code, statutes or laws pertaining to the University were not repealed by its adoption. These statutes, with various amendments, appeared in subsequent Codes--in the Revised Code of 1867 as sections 429, 430, 619, 620, 969, 1001-1024; in the Code of 1876 as sections 1295-1310; in the Code of 1886 as sections 1058-1073; in the Code of 1896 as sections 3667-3685. These statutes and Code provisions were also amended by Act Jan. 28, 1858 (Laws 1857-58, p. 279), by Act Feb. 21, 1866 (Laws 1865-66, p. 90), by Act Feb. 23, 1860 (Laws 1859-60, p. 25), by Act Jan. 30, 1861 (Laws 1861, p. 56), and by Act Feb. 6, 1858 (Laws 1857-58, p. 284). The University is shown to be, not only an institution of the state created, provided for, and preserved by the legislative power thereof, but for nearly 100 years it has been the subject and care of constitutional provisions.

The rights of the people of the state in and to this institution and the lands granted by Congress for its establishment, aid and endowment have in some measure been protected by constitutional provisions. Const. 1819, art. 6, among other things, provided: "The General Assembly shall take like measure for the improvement of such lands as have been or may be hereafter granted by the United States and by this state for the support of a seminary of learning, and the moneys which may be raised from such lands, by rent, lease or sale, or from any other quarters for the purpose aforesaid, shall be and remain a fund for the exclusive support of a State University for the promotion of the arts, literature and sciences; and it shall be the duty of the General Assembly as early as may be to provide effectual means for the improvement and permanent security of the funds and endowment of such institution." Const. 1861, art. 6, contained a similar provision. The revision and amendment of that Constitution by the constitutional convention of 1865 seems not to have disturbed this provision or otherwise provided for it. See Const. 1865, art. 4, § 33. Const. 1868, art. 11, worked a complete revolution...