Patronas v. West Dauphin Corp.

• Decision Date: 02 February 1967
• Docket Number: 1 Div. 368
• Citation: 194 So.2d 845,280 Ala. 442
• Parties: Pete PATRONAS v. WEST DAUPHIN CORPORATION.
• Court: Alabama Supreme Court

Page 845

194 So.2d 845

280 Ala. 442

Pete PATRONAS v. WEST DAUPHIN CORPORATION.

1 Div. 368.

Supreme Court of Alabama.

Feb. 2, 1967.

M. A. Marsal, Mobile, for appellant.

Pillans, Reams, Tappan, Wood & Roberts, Mobile, for appellee.

SIMPSON, Justice.

This is a bill to quiet title to some nine miles of sand dune, wild, scrub oak property on Dauphin Island filed by West Dauphin Corporation against appellant. Following a hearing wherein the evidence was taken ore tenus, the trial court decreed that the complainant-appellee owned the property, was in peaceable possession thereof and restrained the respondent-appellant from further dumping garbage upon the land. This appeal followed.

Five assignments of error are made, one of which is not argued, and the other four complain that the trial court erred in its decree on the ground that the evidence shows that the complainant had no more than 'a scrambling possession' and hence had no right to have title quieted.

The complainant-appellee showed that record title to the property was in it. This was not disputed. The gist of the appellant's argument centers around his contention that there was no evidence to support the court's finding that in addition, appellee was in possession of the same.

The bill alleges that complainant is in actual or constructive, peaceable possession of the lands described, and that the respondent is engaged in the garbage disposal business on Dauphin Island and is using the land to dump garbage collected from the residents of the Island.

The position taken by appellant is that the evidence shows that the respondent has been using the land to dump his garbage for a considerable period of time, that he built a shell road on the property to drive his garbage trucks on, and that in the past he has grazed cattle on the property.

It is well settled in this jurisdiction that:

'To maintain a bill to quiet title, possession, actual or constructive, is essential and must be definitely and unequivocally averred. Hobson v. Robertson, 224 Ala. 49, 138 So. 548. A complainant not in actual possession may rely on constructive possession which the law attaches to the legal title in the absence of an actual possession by anyone else. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562.'--Moorer v. Bethlehem Baptist Church, 272 Ala. 259, 130 So.2d 367.

The trial court found that the complainant here had proved that it was in peaceable possession of the lands involved. There is evidence to support this finding. For example, it had erected 'No Trespassing' signs on the land from time to time; it had executed leases to various parcels of the lands; it had employed persons from time to time to care for and supervise the property; it permitted swimming in the bay along the shore line, and fishing from the property. It and its predecessors in title had paid taxes on the land for more than twenty consecutive years. The appellant contends, however, that his evidence indicates that the possession of the complainant must be but 'a scrambling' one since it shows that he has been in possession. We are not convinced. It is true that this court has said on many occasions that the possession of the respondent in a case like this need not be such as would ripen into title, but this does not mean that the respondent may defeat complainant's bill to quiet title by a mere showing that he has done isolated acts indicating possession of the property, not in fact amounting to an...