Gray v. Alabama Fuel & Iron Co.

• Decision Date: 04 November 1926
• Docket Number: 6 Div. 393
• Citation: 216 Ala. 416,113 So. 35
• Parties: GRAY et al. v. ALABAMA FUEL & IRON CO.
• Court: Alabama Supreme Court

113 So. 35

216 Ala. 416

GRAY et al. v. ALABAMA FUEL & IRON CO.

6 Div. 393

Supreme Court of Alabama

November 4, 1926

Rehearing Denied June 18, 1927

Appeal from Circuit Court, Jefferson County; R.V. Evans, Judge.

Action by the Alabama Fuel & Iron Company against A.J. Gray and others, individually, and as partners under the firm name of the Jefferson Lumber Company, and L.L. Griffin. Judgment for plaintiff, and defendants appeal. Affirmed.

Statement by Somerville, J.

Jos. P Mudd and Edw. T. Rice, both of Birmingham, for appellants.

Percy Benners & Burr, of Birmingham, for appellee.

SOMERVILLE J.

The several counts of the complaint are in trespass de bonis and trover for the taking or conversion of trees, saw logs, or lumber, as the property is variously described.

The principles applicable to a case like this were correctly stated in Cooper v. Watson, 73 Ala. 252, 255, as follows:

"The doctrine seems well settled, upon principle and authority, that if the owner of the land be not in the actual possession--if he can show title to things severed from it, only by showing title to the land, a personal action for the taking, conversion, or detention of such things will not lie. If he have the possession at the time of the severance, the rule is different. But if his possession is divested--if his right lie in entry, and the adverse possessor gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the things severed are converted into chattels. But they do not become the property of the owner of the land; he is out of possession, and has no right to the immediate possession of such things, nor can he bring any action to recover them, until he regains possession."

These principles are restated and fully discussed in Stewart v. Tucker, 106 Ala. 319, 17 So. 385; Aldrich Mining Co. v. Pearce, 169 Ala. 161, 52 So. 911, Ann.Cas.1912B, 288; and Williams v. Lyon, 181 Ala. 531, 61 So. 299; Sadler v. A.G.S.R.R. Co., 204 Ala. 155, 85 So. 380. Those cases, as also Cooper v. Watson, supra, recognize the principle that a constructive possession of the land, resulting from the plaintiff's legal title thereto, is sufficient to support these personal actions. This assumes that the defendant, or the person under whose authority the property has been severed and converted, was not in the adverse possession of the land at the time of the severance. Stewart v. Tucker, 106 Ala. 319, 322, 17 So. 385; Sadler v. A.G.S.R.R. Co., 204 Ala. 155, 85 So. 380.

The adverse possession which will exclude the owner's constructive possession must be an actual possession, held in good faith under claim of right. A merely transitory possession--an entry and holding merely for the purpose of severing and removing the timber or other growing things--will not suffice. Aldrich Mining Co. v. Pearce, 169 Ala. 161, 168, 52 So. 911, Ann.Cas.1912B, 288. "Yet if the owner has notice that the trespasser is upon the premises, exercising acts of ownership, such as cultivating the land or severing and removing the timber, and acquiesces therein, or if upon notice by the owner to the intruder to desist, the demand is refused and he remains upon the premises, and continues to exercise acts of dominion and ownership, such possession becomes actual and adverse to that of the owner. The owner's possession becomes divested, and his right is in entry only." Stewart v. Tucker, 106 Ala. 319, 322, 17 So. 385, 386.

Notwithstanding the testimony of Mary Howard that her ancestors and herself were in possession of the Easton land from the date of Thomas Easton's death in 1866 on down to the present time, and that they successively lived on it and cultivated it--those were mere general conclusions which were effectively nullified, so far as plaintiff's portion of the land is concerned, by her specific statements showing that those acts occurred in section 23, and that plaintiff's land was wild land (lying in sections 13 and 24), upon which there had never been any habitation, or cultivation, or occupancy of any kind.

So, also, though the defendant Griffin testified that he had been over the Easton tract of land prior to cutting it, and that Mary Howard was living on it and part of it was in cultivation, it is conclusively apparent that he did not refer to plaintiff's tract, for he testified that "the part of that land where I put my sawmill (in section 24) was all timber and wild, and there was no fence and no sign of habitation on that part."

There was, therefore, no conflict in the evidence, which showed that plaintiff's constructive possession of its land in sections 13 and 24 was never disturbed by any actual adverse possession. Mary Howard and her ancestors, who held intermittent possession of a part of the Easton lands not claimed by plaintiff, had no color of title which could serve to extend that possession to other parts not thus actually occupied, and hence that principle cannot serve the defendants here.

Our conclusion is that the general affirmative charge was properly given for plaintiff.

Defendants complain that the trial court erred in receiving the several deeds exhibited by plaintiff as muniments of title--this for the reason, as alleged, that the land conveyed was, at the time of each conveyance, in the adverse possession of Mary Howard, or of one of her ancestors. This contention is, of course, invalidated by the conclusion above stated.

Another contention is that the trial court committed reversible error in receiving in evidence the pleadings and decree of the court in the equity case of Mary Howard v. Alabama Fuel & Iron Company, the substance of which is shown in the reporter's statement above.

We agree with counsel for appellant in the view that the decree in that case adjudicated nothing but the single fact that Mary Howard did not have the peaceable possession, actual or constructive, of the lands in controversy, at the time of the filing of her bill of complaint. The "merits" of the case involved two main issues: (1) The peaceable possession by the complainant; and (2) contingently upon proof of such possession, the nature and status of the respondent's title. Whittaker v. Van Hoose, 157 Ala. 286, 47 So. 741; Vaughan v. Palmore, 176 Ala. 72, 57 So. 488; Stacey v. Jones, 180, Ala. 231, 60 So. 823. The trial court explicitly adjudicated the first proposition against the complainant, and denied relief upon that ground. There was no occasion for, nor any propriety in, an adjudication of the respondent's title (Buchmann A. & I. Co. v. Roberts, 213 Ala. 520, 105 So. 675), and none was made; and the title of the complainant was not adjudicated either directly or by implication from the establishment of a superior title in the respondent. So far as actual title was concerned, it was res non judicata. Chamberlain v. Gaillard, 26 Ala. 504, 511; Gilbreath v. Jones, 72 Ala. 368; New v. Driver, 180 Ala. 176, 60 So. 798; Taylor v. Wilson, 183 Ky. 695, 210 S.W. 670; Hudson v. Iguano, etc., Co., 71 W.Va. 402, 76 S.E. 797; 2 Freeman on Judgments (5th Ed.) 1860; 34 Corp.Jur. 957, § 1360; Id., 964, § 1375.

The cases relied upon by plaintiff as supporting a contrary view are not opposed. The case of Warrior River, etc., Co. v Ala. State Land Co., 154 Ala. 135, 45 So. 53, is based upon a construction of rule 28, chancery practice, holding that the dismissal of a bill to quiet title under the statute, after it had been set down for hearing, because of the complainant's default, operating as a dismissal on the merits, was an adjudication of the title in favor of the respondent. The decision in that case was therefore responsive to the mandate of the rule, the conditions being entirely appropriate, and its authority is invalid here. So, also, the case of Penny v. B. & A. Mortgage Co., 132 Ala. 357, 31 So. 96, is readily distinguishable. In that case (a bill to remove cloud from title) the bill was wanting in equity for want of an allegation of possession in the complainant, but the respondents waived the defect by not objecting to the bill. "On this state of the case," said the court, "the chancellor was not bound to dismiss the bill for want of equity because of its failure to aver complainant's possession of the land. The respondents had a right to waive this defect in averment, They did waive it by failing to object to the bill on account of it and trying the case on its merits; and the court by this course of procedure acquired jurisdiction to determine the case on its merits." The opinion then proceeds to show that the decree denying relief and dismissing the bill was not based upon the failure of the complainant to allege...