Eureka Co. v. Norment

• Citation: 104 Ala. 625,16 So. 579
• Parties: EUREKA CO. ET AL. v. NORMENT ET AL.
• Decision Date: 28 November 1894
• Court: Supreme Court of Alabama

16 So. 579

104 Ala. 625

EUREKA CO. ET AL. v. NORMENT ET AL.

Supreme Court of Alabama

November 28, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action of ejectment by James M. Norment and others against the Eureka Company and others. From a judgment for plaintiffs defendants appeal. Affirmed.

The cause was tried in the court below by and before the presiding judge, without a jury, on the pleas of not guilty and the statute of limitation of 10 years. The plaintiffs introduced in evidence a patent issued to James W. Norment on a cash entry, dated June 1, 1858, and plaintiffs were shown to be the children and sole heirs of said James W Norment, who died intestate in May, 1881. The defendants introduced evidence tending to show, that said Norment entered the land in December, 1854, but that the patent did not issue to him, till June 1, 1858, and that in 1855, the land was sold under execution against said James W. Norment the ancestor of plaintiffs, and was bought at the sheriff's sale by Williamson Hawkins, Joab Bagley and James A. Mudd, through whom, by mesne conveyances, the defendants claim to own the land; the Eureka Company one-half interest in it, and the other defendants, the other half. It was shown that Hawkins conveyed it to Joab Bagley and to William S. Mudd, as executor of James A. Mudd. The deed to the Eureka Company, was from the Red Mountain Iron & Coal Company, and bore date December 31, 1873; that of the Red Mountain Iron & Coal Company, was from John T. Milner, dated January 31, 1863; that of Milner was from Joab Bagley, dated June 6, 1862. The deed of William S. Mudd, under whom his devisees and executors claim, was from James A. Mudd, of date May 12, 1873. The defendants did not produce the sheriff's deed to the purchasers at said sale, nor was there any evidence tending to show, that any such conveyance was ever made by the sheriff, or that the legal title was ever, in any manner, divested out of said Norment, except as it was claimed, to have been divested by adverse possession for 10 years, on which defense the defendants relied. To establish this defense, the defendants introduced one Simonds, who testified that in 1855 or 1856, he built a cabin on the land; that his house was built on this land by mistake; that he thought the land in controversy was public land, and when the lines were run, in 1859, by a surveyor, he ascertained that his house was built, over the line, on this land, by about 20 steps; that he took possession of it as public land, believing it to be such, and inclosed about three acres of it; that when the line was run out, Joab Bagley told him he could stay there as long as he desired; that he did not care for his living on it, as it was a mistake by which he had entered on it; that he left the land on the 1st of January, 1869, never spoke to Mr. Bagley about it after he told him, in 1859, he could remain on it, nor to any one else, and never paid any rent or heard anything more about it; that there was no other house but his on the land, and no one lived on it during the time he lived there, and he knew it as the "Norment Tract"; that Bagley told him to stay as long as he desired and to watch over the land, and he stayed as his tenant. The next possession of said land, was in 1873, when one Autonne is shown to have lived for 12 or 18 months in the cabin or shack built by Simonds, and cultivated some 5 or 6 acres in a garden for Mr. De Bardeleben. His statement was, that "he went there to garden for Mr. De Bardeleben," who was shown to have then been the superintendent and general manager of the Eureka Company. Autonne left the place in the summer of 1874. After Autonne left, one George Smith moved into and occupied the Simonds house, in 1876, and remained there for about a year, and left the latter part of 1876, or the first of 1877. His statement as to occupancy was, that he got the land from Mr. Noble or Mr. Mount, one of whom was shown to have been the cashier, and the other, the bookkeeper of the Eureka Company. What he did while he lived on the land, and for what purpose he lived in the house, is not shown. No other occupancy or possession is shown after his removal, until in 1879 or 1880, when a man by the name of Griffin, in order to enter some lands adjoining it, moved into the cabin and remained there for two or three months. His statement to a witness was, "that the Eureka Company told him to live there, until he got his house ready." He cultivated about an acre and a half, and when his own house was ready, he moved off of this land, into his own house, near by. For two years,-from June, 1882 to June, 1884,-it was shown that one Brewer leased the lands in controversy from William S. Mudd, and erected a sawmill and some temporary houses on them, which he afterwards removed to Birmingham. In March, 1885, one Hale, a negro, rented the lands from the Eureka Company, and cultivated a part of them for that year,-the patch around the Simonds house. This was the last occupancy shown, before the bringing of this suit, in May, 1890, except that the Eureka Company had in the meantime been cutting some timber off the land. One Alva Buchanan, a negro, testified that he had known the lands for 12 or 13 years, and that the lands of the Eureka Company used pine off the lands, off and on, ever since he had been there; that he saw the Eureka Company some three or four times in the same year, some 12 or 13 years ago, haul timbers from the lower end of the land next to the mines, and that for the last 15 years, until the last six years, he knew nothing about the land at all. The proof also tended to show that the lands were known and called the "Norment Entry," and sometimes, as the "Mudd and Miles Lands." One of defendants' witnesses, Wade, who had and owned a sawmill, some five or six miles away, testified that he tried unsuccessfully for six months in 1879, to ascertain who owned the lands, and was eventually informed by one Dr. Vaun. It was shown that for some of the years, from 1871 to the trial, the lands had been assessed and the taxes paid, sometimes by Mudd and again by the Eureka Company. In 1878, they were assessed to a man by the name of Alberto Martin, and for several years no showing was made as to their assessment and the payment of the taxes. The assessment books were lost. The proof also tended to show, that only a few acres of the land,-from two to six acres,-had ever been cleared, and the tract was mainly valuable for timber, but was adapted to farming, compared favorably with the agricultural lands of that section of country, and was good for grazing cattle.

The plaintiffs offered in evidence and read, against the objection of defendants, the record of a suit in chancery filed by defendants against the plaintiffs for the purpose of enjoining the prosecution of this suit, and showing that an injunction was obtained enjoining the further prosecution of the same, on the grounds, as alleged in the bill, that the purchasers of the lands at the sheriff's sale, in 1855 had paid the amount of their bid, but had never received a deed from the sheriff, and seeking to have the present sheriff execute one, so as to convey the legal title to them. The bill alleged that at the time of the sale, the lands were and still are woodlands, the soil poor and almost entirely unsusceptible of cultivation, were valuable only for firewood which might be cut from them, and that complainants and their successors made such use of said lands for several years...