Lucy v. Tennessee & C.R. Co.

• Decision Date: 30 January 1891
• Court: Alabama Supreme Court
• Parties: LUCY ET AL. v. TENNESSEE & C. R. CO.

8 So. 806

92 Ala. 246

LUCY ET AL. v. TENNESSEE & C. R. CO.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

This was a statutory action of ejectment, brought by M. W. Lucy and others, appellants, against the Tennessee & Coosa Railroad Company, appellee, and sought to recover a certain strip of land described in the complaint. The evidence is set out at length in the opinion. In addition to the evidence as found therein, the defendant introduced evidence tending to show that one Hill held the land for Gilliland, Howell &amp Cook, at South Carolina. Upon the evidence as adduced the plaintiffs requested the court to give the following written charges, and duly excepted to the refusal to each: (1) The affirmative charge. (2) "The court charges the jury that the evidence before them is not sufficient to show an outstanding title in Gilliland, Howell & Co." (3) "The court charges the jury that the evidence before them is not sufficient to show adverse possession in the defendants, or either of them." (4) "The court charges the jury that, under the evidence in this case, the law presumes that the defendants went into the possession of the land sued for under and by permission of said W. E. Lucy or the plaintiffs in this suit, and the burden of proof is on the defendant to show that such possession has become adverse to the plaintiffs, and when same became adverse, and the law presumes the defendants held under the plaintiffs until they show such adverse possession." (5) "The court charges the jury that if they believe the evidence that the lands sued for were suitable for farming purposes, then the cutting of timber off of it by O. P. Hill and Curry before the war, and the cutting of fire wood by O.P. Hill in 1866 which was hauled by Miller, is not sufficient to constitute adverse possession." (6) "The court charges the jury that the prescription or statute of 20 years has no application to this case, as the evidence does not show that the lands sued for has been in the adverse possession of other persons than the plaintiff for 20 continuous years before the bringing of this suit." (7) "The court charges the jury that there is no sufficient evidence of any adverse possession of the land sued for up to and before the building of the road, in 1871, by Kyle and others." (8) "The court charges the jury that if they believe from the evidence that the defendants were originally trespassers on the land sued for, not going in under any claim or title from any one, then they cannot defeat the plaintiffs' suit by showing an outstanding title in Gilliland, Howell &amp Co." (9) "The court charges the jury that, if they believe the evidence, the plaintiffs have shown the legal title to the lands sued for in themselves, and the law presumes that when the defendant went into possession of the same it went into possession under the plaintiffs or their ancestor, and their possession would not become adverse until it set up some claim or right to the land." (10) "The court charges the jury that the possession of the defendants, or either of them, of the land sued for, and the exercise of acts of ownership over it, by using it as a railroad track for running its trains over it, of itself is not sufficient to show an adverse possession. There must be more. Such possession and acts of ownership must be accompanied with the intent to claim title thereto." (11) "The court charges the jury that if they believe from the evidence that the defendants are intruders upon the possession of the plaintiffs, having entered with no claim or color of title, then they cannot set up a title in Gilliland, Howell & Co. to defeat this suit." (12) "The court charges the jury that the statute of limitations of ten years does not apply to a case like this. Title to a right of way can only be acquired by deed or a prescription of twenty years." (13) "The court charges the jury, if they believe from the evidence that the Eufaula, Opelika, Oxford & Guntersville Railroad Company built the road from Gadsden to Attalla in the year 1871, and that the said company was in adverse possession of the land sued for, then this possession cannot be tacked onto any possession of the defendants to the suit to make out ten years' adverse possession of the defendants, there being no evidence before the jury that defendants claim under the said Eufaula, Opelika, Oxford & Guntersville Railroad Company." There were verdict and judgment for defendant, and the plaintiffs appeal.

Aiken & Martin, for appellants.

W. H. Denson, for appellee.

COLEMAN J.

The bill of exceptions in many respects presents an indefinite and unsatisfactory statement of the facts. In more than one instance it is impossible to understand the bearing of certain statements made by witnesses in fixing the precise location of the strip of land in controversy. Plaintiffs introduced a certified copy of the original patent of the United States government, dated April 10, 1848, to William E. Lucy, for the N.E. 1/4 of S.W. 1/4 of section 4, township 12, range 6 E., in the Coosa land-district, the possession of the patentee under the patent, his death, and that plaintiffs were his only heirs. The evidence then showed that the strip of land sued for was a part of the 40 acres granted by the patent. Prima facie this proof entitles plaintiffs to recover in ejectment. Defendant pleaded not guilty, and relied upon the statute of limitations of 10 and 20 years as a bar to plaintiffs' action. After the evidence was closed the court directed the jury, if they believed the evidence, to find the issue for the defendants. The strip of land described in the complaint constitutes a part of the roadbed of the railroad, defendant. A few well-settled principles of law will be here stated, which control the rights of the litigants in this case.

An adverse possession of land, which continues unbroken for 10 years, will confer a title which will sustain as well as defeat an action of ejectment, and the principle applies alike where possession is held under color or claim of title and where the possession was that of a mere trespasser. Burks v. Mitchell, 78 Ala. 63; Wilson v. Glenn, 68 Ala. 386; Smith v. Roberts, 62 Ala. 83. An important distinction between one who takes and holds possession under color or claim of title and a mere trespasser prevails. In the former, a defendant may defeat plaintiff's recovery by showing a superior outstanding title to plaintiff in a third person, without connecting himself with it, his possession being good...