Louisville & N.R. Co. v. Hall

• Decision Date: 13 February 1902
• Citation: 131 Ala. 161,32 So. 603
• Parties: LOUISVILLE & N. R. CO. ET AL. v. HALL.
• Court: Alabama Supreme Court

32 So. 603

131 Ala. 161

LOUISVILLE & N. R. CO. ET AL. v. HALL.

Supreme Court of Alabama

February 13, 1902

On Rehearing.

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by J. N. Hall against the Louisville & Nashville Railroad Company and others. From a judgment in favor of plaintiff the defendant above named appeals. Affirmed.

This was an action of trespass quare clausum fregit brought by the appellee, J. N. Hall, against the appellant, the Louisville &amp Nashville Railroad Company, J. I. McKinney, T. H. Mizell, H A. Shields, the Mobile & Montgomery Railroad Company, and the Western Railway of Alabama, and sought to recover damages for entering upon the premises called the "Joe Hall Boarding House Property," near the city of Montgomery, and laying a railroad track thereon, against the protest of the plaintiff. The defendants pleaded the general issue and several special pleas. The only plea reviewed on the present appeal was in words and figures as follows: "(a) Come all the defendants jointly, and for answer to the entire complaint, and to each count thereof, say that the plaintiff has not now, and had not at the time of the alleged trespass any paper title or color of title whatever to the locus in quo; that in the year 1884 the plaintiff leased from the Louisville & Nashville Railroad Company the lot of land upon which he built his house, which is the identical house described, and called the 'Joe Hall Boarding House,' situated near the western limits of the city of Montgomery, and described in the complaint; that, at the time of said lease between the plaintiff and the Louisville & Nashville Railroad Company, the Louisville & Nashville Railroad Company was in the actual possession, as lessee, of all the property of the Mobile & Montgomery Railway Company, and of all the prop erty of the Western Railway of Alabama, west of the city of Montgomery; that plaintiff's possession under said first-mentioned lease continued of force, and plaintiff held under it, until, to wit, the 26th day of March, 1892, when plaintiff bought from said Mobile & Montgomery Railway Company and the Louisville & Nashville Railroad Company the property described in the deed set out as Exhibit A to plea No. 2 of the Mobile & Montgomery Railway Company, which plea and exhibit are here referred to, and made a part of this plea; that the plaintiff entered under said deed and held the property therein described, and that said deed did not convey the locus in quo upon which the alleged trespass was committed; that the defendants Shields, McKinney, and Mizell entered as the servants and agents of the said Louisville & Nashville Railroad Company, claiming under it; that said Hall never had any claim of inheritance or of purchase to the locus in quo mentioned in the complaint; and that he has never filed in the office of the probate judge of Montgomery county (the county in which said locus in quo lies) a declaration in writing, subscribed by him, setting forth his adverse claim, and particularly describing the locus in quo, of which he claims to be in adverse possession thereof." The plea numbered 2 referred to in plea numbered 3, was as follows: "(2) And for further plea in this behalf by defendant in its own behalf, and not jointly with the other defendants, the said Mobile & Montgomery Railway Company, for answer to the complaint as a whole, and also separately to each count thereof, says that the locus in quo on which said alleged trespass was committed was not at the time of the alleged trespass in the possession of the plaintiff, but that at that time the legal title to the locus in quo was in this defendant, but that the Western Railway of Alabama, a corporation under the general laws of Alabama, was then in the possession of the locus in quo, holding adversely to this defendant, and also to the plaintiff, and that plaintiff in this suit purchased whatever title he had to the locus in quo from this defendant, and that the deed of conveyance under which he claimed the property described in the complaint, and which is the only deed or conveyance under which he claims title to the locus in quo, does not convey the premises contained in the locus in quo; and that, if plaintiff ever claimed said locus in quo adversely to this defendant, he did not give notice of his adverse possession or claim by filing in the office of the judge of probate of the county in which the land lies, to wit, Montgomery county, a declaration in writing, subscribed by him, setting forth such claim, and particularly describing the real estate of which he claims to be in adverse possession. A copy of said deed from this defendant to the plaintiff is hereto attached, marked 'Exhibit A,' and made a part of this plea." The plaintiff demurred to plea "A" upon the following grounds: "(1) In so far as the same is an answer to counts 1 and 3 of the complaint, that said defendants do not aver that the plaintiff was not in possession of the locus in quo at the time of the alleged trespass. (2) That said defendants do not aver that, at the time of the entry into possession, an adverse claim of possession of said locus in quo by the plaintiff commenced, on or subsequent to the 11th day of February, 1893. (3) So far as it attempts to answer count 2, plaintiff demurs, and assigns as grounds that said defendants do not aver that the plaintiff had no legal title or right of immediate possession at the time of said alleged trespass by said defendants." Under the opinion on the present appeal, it is unnecessary to set out in detail the facts as adduced in the evidence. There were verdict and judgment for the plaintiff, assessing his damages at $1,000. The appealing defendant assigns as error the several rulings of the trial court to which exceptions were reserved.

Tyson, J., dissenting in part.

Thos. G. & Chas. P. Jones and J. M. Falkner, for appellant.

A. A. Wiley and Chas. Wilkinson, for appellee.

TYSON J.

This was an action of trespass quare clausum fregit. The complaint contains three counts. The first relies for a recovery upon plaintiff's possession of the locus in quo; the second, upon title; and the third, upon title and possession.

The gist of this action is the injury done to the possession; and, of consequence, to support it the plaintiff must show that, as to the defendants, he had at the time of the alleged injury rightful possession, actual or constructive. Of course, if he has title to the property alleged to have been trespassed upon, he has constructive possession of it, unless he has parted with the possession, conferring on another the exclusive right of enjoyment, against whom he has not the right of immediate possession. Davis v. Young, 20 Ala. 151; Boswell v. Carlisle, 70 Ala. 244; Dunlap v. Steele, 80 Ala. 424; Fields v. Williams, 91 Ala. 502, 8 So. 808. As against a stranger, actual possession will support the action, without regard to whether plaintiff had title at the time of the alleged trespass. Duncan v. Potts, 5 Stew. & P. 82, 24 Am. Dec. 766; Lankford v. Green, 62 Ala. 314. But as against one having title to the property alleged to have been trespassed upon, and having been wrongfully denied possession, in 26 Am. & Eng. Enc. Law (1st Ed.) 600, it is said: "One having title to property, and wrongfully denied possession, can enter without being guilty of trespass; so a tenant, mortgagor, or other person, without title, may have a present right of possession which will justify his entry, or enable him, if in possession, to maintain trespass for the wrongful entry of another." See, in support of this proposition, note 1 on page 600, and note 1 on page 601, of the same volume, where the cases are collated. This principle was recognized in Herndon v. Bartlett, 4 Port. 481, where the court held that the plea of liberum tenementum was an answer to a complaint in trespass quare clausum fregit, alleging entry with force and arms, and was proper matter for special plea. See, also, 26 Am. & Eng. Enc. Law (1st Ed.) 632-634. In view of the conclusion to strike the bill of exceptions, the only matter before us for consideration is whether the joint plea of all the defendants, designated as "a," was subject to the demurrer interposed to it. That plea refers to, and makes a part of it, plea 2 of the Mobile & Montgomery Railway Company,--one of the defendants in the cause. In the absence of all objection to this mode of pleading, we must hold that the effect of this reference, etc., to plea 2, was to incorporate the allegations of fact in that plea into the plea under consideration, and to make those allegations as much a part of this plea as if they had been actually written in the body of it. With the plea thus framed, it contains a denial of plaintiff's possession and title to the locus in quo, and an allegation of liberum tenementum in the Mobile & Montgomery Railway Company. It is clear that it was not subject to the demurrer interposed to it, whatever may be its defects in other respects. For the error committed in sustaining the demurrer, the judgment must be reversed.

The bill of exceptions must be stricken, on the authority of Gassenheimer Paper Co. v. Marietta Paper Mfg. Co. (Ala.) 28 So. 564, on account of being in violation of rule 33 of circuit and inferior court practice. Code, p 1201. The frame of the bill of exceptions in this case is identical with the one in the Gassenheimer Paper Co. Case. Here, as there, it "contains a statement of everything that was done on the trial, and sets forth every word uttered by everybody--witnesses, attorneys, judge, etc.--while it was in progress. * * * No effort is made to present a statement of the testimony or its tendencies, as the rule requires, but it is given verbatim as it comes from the mouths of...