Lawrence v. Doe ex dem. Alabama State Land Co.

• Decision Date: 30 June 1905
• Citation: 41 So. 612,144 Ala. 524
• Parties: LAWRENCE v. DOE EX DEM. ALABAMA STATE LAND CO.
• Court: Alabama Supreme Court

41 So. 612

144 Ala. 524

LAWRENCE v. DOE EX DEM. ALABAMA STATE LAND CO.

Supreme Court of Alabama

June 30, 1905

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

"To be officially reported."

Ejectment for the recovery of about 400 acres of land by the Alabama State Land Company against Joel J. Lawrence. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Upon the trial, the plaintiff proved the legal title to be in it. The defendant claimed title by a deed from one John W Norwood, executed to him on the Sth day of February, 1883 and through possession by said Norwood prior to that time and by himself since. One E. J. Crider, a witness for the defendant, testified that he had been a justice of the peace in Tuscaloosa county continuously since 1859; that he knew the lands in controversy; that he knew the said John W Norwood, and prepared and took the acknowledgment to the deed executed by him to the defendant; that said Norwood, when he executed the deed, claimed that he owned the lands described therein; and that witness had heard the lands spoken of as the "Norwood lands." The above deed was put in evidence, and it was also shown that for more than ten years prior to bringing the suit the defendant had been in actual possession of from three to six acres of the land in suit. The land so occupied was inclosed by a fence, which also inclosed a larger tract owned by the defendant, not involved in this suit. Other facts, as far as necessary, are shown by the opinion. On the written request of the plaintiff the court gave to the jury the following written charges: "(1) The court charges the jury that the burden of proving adverse possession is upon the defendant; and, if the evidence fails to reasonably satisfy the jury that a sufficient portion of the lands in suit was within defendant's inclosure, that would attract the attention of a reasonably prudent owner that the inclosure included a portion of the land in suit, then such inclosure would not be sufficiently notorious to extend the possession to the lands outside the inclosure. (2) Unless the jury believe, from the evidence in this case, that the Alabama State Land Company knew that Lawrence was setting up an adverse claim to the lands involved in this suit, you must find for the plaintiff, unless the defendant has satisfied you by a preponderance of the evidence that the inclosure of the few acres within the field, otherwise on his own land, and such a getting of timber as Lawrence got, gave such notice of the adverse claim to the Alabama State Land Company as would have compelled it, unless the company or its agents willfully closed their eyes to the fact. (3) The court charges the jury that, in order to sustain the defense of adverse possession, the possession must have been actual, open, notorious, and continuous for a period of 10 years before suit brought; and, if the possession was of such a small portion of the land sued for that a reasonably prudent owner would not have notice from it that his lands were included in such inclosure, then the possession would be insufficient to sustain the defense of adverse possession of any of the lands sued for outside of the inclosure." The defendant requested, in writing, the general charge in his favor, which was denied. There was verdict and judgment for the plaintiff, including all costs.

Robinson Brown, Daniel Collier, and J. J. Mayfield, for appellant.

Henry Fitts, for appellee.

ANDERSON J.

The plaintiff established a complete chain of title to the land, and the defendant set up adverse possession to all the land involved, except the portion as to which he disclaimed, and the burden of proof was upon him to establish his title by adverse possession, the essential elements of which are: "(1) The possession must be hostile and under claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; and (5) it must be continuous. If any of these constituents be wanting, the possession will not effect a bar to the legal title." Chastang v. Chastang (Ala.) 37 So. 799; 1 Am. & Eng. Ency. Law (2d Ed.) 795; Murray v. Hoyle, 97 Ala. 588, 11 So. 797; Ross v. Goodwin, 88 Ala. 390, 6 So. 682; Eureka Co. v. Norment, 104 Ala. 625, 16 So. 579; Goodson v. Brothers, 111 Ala. 589, 20 So. 443; Normant v. Eureka Co., 98 Ala. 181, 12 So. 454, 39 Am. St. Rep. 45. There was evidence on the part of the plaintiff that the defendant stated, but a short time before the suit was brought, that he claimed only 40 acres in section 9 and which was not embraced in this suit. This alone was sufficient to make it a question for the jury as to whether or not the defendant's possession was hostile, in view of the fact that he denied having made the statement, even if all the other elements of adverse possession were established, but which we do not mean to concede. The general affirmative charge was properly refused.

Of course, there are instances where the actual possession of a part of the land will be extended by color of title to the whole tract described in the color of title, in the absence of any actual possession of any part of the tract by the true owner, and, in fact, such seems to be the general rule. There are exceptions, however, and instances where the actual possession of a part does not necessarily extend the adverse possession to the whole tract, as against the true owner who is not in the actual possession of any of it; it depending to a great extent upon the quality and character of the land the nature and character of the possession, and the purpose for which the entry was made. The rule seems to have no application where a person takes and maintains a few acres of land in an uncultivated township, for the mere purpose of thereby gaining title to the entire township by an extension of his actual possession under his color of title to the exclusion of the rightful owner. Chandler v. Spear, 22 Vt. 388. Nor does the doctrine of constructive possession of lands by the cultivation of a part, accompanied by a claim of the whole tract under color of title, apply to large tracts of land not purchased for actual cultivation. Jackson v....