Stewart v. Tucker

• Decision Date: 04 April 1895
• Citation: 106 Ala. 319,17 So. 385
• Parties: STEWART v. TUCKER.
• Court: Alabama Supreme Court

17 So. 385

106 Ala. 319

STEWART v. TUCKER.

Supreme Court of Alabama

April 4, 1895

Appeal from circuit court, Chambers county; W. D. Denson, Judge.

Action of detinue by J. J. Tucker against Thomas J. Stewart. From a judgment for plaintiff, defendant appeals. Reversed.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the following written charges to the jury: (1) "If the jury believe from the evidence that the plaintiff, J. J. Tucker, was in the actual possession of the lands upon which the corn in dispute was grown during the year 1892, cultivating a part, and preparing the other for cultivation, and never abandoned or surrendered the possession of the same, and prepared the lands for cultivation in 1893, and did plant and cultivate said lands for said year, then they must find for the plaintiff notwithstanding they may believe from the evidence that the defendant did go on said lands during said year 1893, and work said crop, if this was done without the consent of the plaintiff." (3) "The jury is charged that the question for them to determine is, who was in the rightful possession of the land upon which this corn was raised, and who raised it during the year 1893?" The defendant separately excepted to the giving of each of these charges and duly excepted to the court's refusal to give the general affirmative charge in his behalf. There was judgment for the plaintiff, and the defendant appeals.

E. M Oliver and J. R. Dowdell, for appellant.

Robinson & Duke, for appellee.

COLEMAN J.

The appellee, Tucker, sued in detinue for 100 bushels of corn. The defendant, Stewart, and the plaintiff were adjacent landowners, and the corn was raised on about three acres of land claimed to be in the actual possession of both parties at the time the corn was severed. "The doctrine seems well settled, upon principle and authority, that if the owner of the land be not in actual possession,-if he can show title to things severed from it only by showing title to the land,-a personal action for the taking, conversion, or detention of such things will not lie. If he have the possession at the time of the severance, the rule is different. But if his possession is divested,-if his right lie in entry,-and the adverse possessor gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the things severed are converted into chattels. But they do not become the property of the owner of the land. He is out of possession, and has no right to the immediate possession of such things, nor can he bring any action to recover them until he regains possession." Cooper v Watson, 73 Ala. 252; Beatty v. Brown, 76 Ala 267. The corn was raised in the year 1893. The plaintiff did not undertake to show either a legal title to the land, or possession under color of title. He relied solely upon actual possession from and including a part of the year 1892 to the time of the severance and removal of the corn by the defendant, Stewart. The appellant's contention is that he was the owner of the land and in the actual possession during the entire year 1893, and previous thereto. A bare trespasser cannot by force take actual possession of the land of another, and gather the crop growing thereon, or sever and remove the timber therefrom, and thereby acquire ownership or legal title thereto. Street v. Nelson, 80 Ala. 230; Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718. Neither can it be said that two persons are in hostile, actual possession, adverse to each other, of the same land, at one and the same time. We find but little, if any, conflict in the facts given in evidence. The plaintiff cleared and cultivated about one-fourth of the land in the year 1892, and took the crop, without molestation or hindrance. During that year he began to clear the remainder of the strip, and worked at it continuously, at intervals, until it was ready for...