Marietta Fertilizer Co. v. Blair

• Decision Date: 29 June 1911
• Citation: 173 Ala. 524,56 So. 131
• Parties: MARIETTA FERTILIZER CO. v. BLAIR ET AL.
• Court: Alabama Supreme Court

56 So. 131

173 Ala. 524

MARIETTA FERTILIZER CO. v. BLAIR ET AL.

Supreme Court of Alabama

June 29, 1911

Appeal from Circuit Court, Clay County; John Pelham, Judge.

Action by the Marietta Fertilizer Company against R. W. Blair and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Riddle Ellis & Kelly and Tyson, Wilson & Martin, for appellant.

Whitson & Harrison, for appellees.

McCLELLAN J.

Statutory ejectment, by appellant against appellees, to recover the E 1/2 of section 6, township 22, range 6, in Clay county, Ala. The trial was by the court without jury. Upon the whole evidence there can be no reasonable doubt that since 1860 (and probably before) the predecessors, in asserted right, of the appellees Donaldson and the named appellees have been in the actual adverse possession, at least under color of title of approximately 20 acres of the 320-acre tract in controversy. It is now urged upon the authority of Lawrence v. Alabama State Land Co., 144 Ala. 524, 41 So. 612, that for want of evidence, to the particular effect stated in the cited decision, the adverse possession of a part of the half section in question cannot be extended to the boundaries described in the color of title under which such adverse possession was taken and held for more than 25 years before this action was instituted.

The general rule is, and has long been, that where one enters under color of title, in good faith, upon a tract of land his adverse occupancy of a part thereof will extend his adverse possession of that not adversely occupied, by another, to the boundaries described in the color of title. Black v. T. C. I. & R. R. Co., 93 Ala. 109, 110, 9 So. 537; Henry v. Brown, 143 Ala. 446, 39 So. 325; Woods v. Montevallo Coal Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep. 393; Crowder v. T. C. I. & R. R. Co., 162 Ala. 151, 50 So. 230, 136 Am. St. Rep. 17; Clarke v. Dunn, 161 Ala. 633, 50 So. 93; Barry v. Madaris, 156 Ala. 475, 479, 47 So. 152; Campbell v. Bates, 143 Ala. 338, 39 So. 144; Stovall v. Fowler, 72 Ala. 78; Burks v. Mitchell, 78 Ala. 63; Lucy v. Tenn. Co., 92 Ala. 246, 8 So. 806; Childress v. Calloway, 76 Ala. 133; Farley v. Smith, 39 Ala. 38, 44; Bell v. Denson, 56 Ala. 444; Torrey v. Forbes, 94 Ala. 135, 141, 10 So. 320; Normant v. E. Co., 98 Ala. 181, 12 So. 454, 39 Am. St. Rep. 45; Ryan v. Kilpatrick, 66 Ala. 332; Smith v. Keyser, 115 Ala. 455, 460, 22 So. 149; Bailey v. Blacksher Co., 142 Ala. 254, 37 So. 827; Baucum v. George, 65 Ala. 259, 268, 269; Hughes v. Anderson, 79 Ala. 209, 215; Watson v. Mancill, 76 Ala. 600, 601. See, also, Ellicott v. Pearl. 10 Pet. 412, 413, 9 L.Ed. 475; Rose's Notes, pp. 593, 594; Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103, and note; and other decisions of this court cited in them.

An exception to this general rule was recognized by this court in Woods v. Montevallo Coal Co., supra, as existing in those cases where the conveyance is of "two separate and distinct tracts" of land, to only one of which the grantee becomes invested with the legal title, and the actual occupancy is of that tract. In such cases the true owner of the other tract is not disseised, and the possession under the color of title thereto is not extended to include such tract. Henry v. Brown, supra; Crowder v. Tenn. Co., supra. As is seen, one of, if not the, controlling factors creating this exception lies in the separableness, the distinctness, of the tracts conveyed. And this court has well determined that each governmental subdivision or quarter-call does not, in itself alone, constitute a separate, distinct tract of land. Crowder v. Tenn. Co., supra. The announcement, in respect of this exception, in Woods v. Montevallo Coal Co., supra, was bottomed on Bailey v. Carleton, 12 N.H. 9, 37 Am. Dec. 190. Reference to 5 Notes to Am. Dec. pp. 1216-1218, will show the consideration given Bailey v. Carleton by other jurisdictions.

Unless our decision in Lawrence v. Alabama State Land Co., supra, established another exception, than that to which we have referred, to the general rule before stated, this court has not, so far as we are advised, authoritatively done so. And it may be here pronounced that the case at bar does not present a status within the terms of the exception declared in Woods v. Montevallo Coal Co. and in the two recent decisions taking account of its doctrine in this particular.

The character of the extended possession to contiguous lands, under color of title, beyond that, within the boundaries defined by the color of title, actually occupied by the adverse claimant, is, in legal contemplation, actual, not constructive. Black v. Tenn. Co., supra; Stovall v. Fowler, supra. Such possession, under color of title, may be restricted, as to area within the defined boundaries, by actual possession of another. Ryan v. Kilpatrick, supra; Ellicott v. Pearl, supra; Watson v. Mancill, supra. So affirmatively is the general rule before stated that "color of title is sometimes said to be a substitute for a substantial and permanent fence around the premises claimed." Hughes v. Anderson, 79 Ala. 215; Sedg. & Wait on Land Titles, § 667.

The relative, proportionate area, of the whole contiguous tract, actually occupied by an adverse claimant, is not a factor, under our decisions--a qualifying element--in determining the effect of the application of the general rule previously reiterated. Watson v. Mancill, supra; Ellicott v. Pearl, 10 Pet. 412, 9 L.Ed. 475, followed by this court in Baucum v George, 65 Ala. 269. Reason, if not the weight of authority in other jurisdictions, confirms the soundness of this conclusion. Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103, and notes thereto; 1 Cyc. 1127. To ingraft such a qualification--exception--upon the general rule would interpose a factor necessarily uncertain in application, if, indeed, not requiring the exercise of a purely arbitrary discretion in establishing the boundaries of the adverse claim. This qualification or exception to the general rule seems to have been recognized in Vermont, New York and Michigan, and perhaps Minnesota. The Vermont court, in Chandler v. Spear, 22 Vt. 388, found its authority, in part, in Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 Am. Dec. 525. Our court, in Black v. Tenn. Co., 93 Ala. 112, 9 So. 537, interpreted Jackson v. Woodruff as according with the general rule prevailing in this state; a rule that takes no account of the proportion the actually occupied area bears to the whole contiguous tract, or to the nature of the lands adversely claimed or to the custom (if such there is or could be) of the country in respect of the size of landed holdings for the many purposes for which that is done. We cannot be unmindful...