Barrett v. Kelly , 131 Ala. 378 ( 1901 )

TYSON, J.

The two theories upon which the plaintiffs base their right to recover the strip of land in suit are: First, that it is a part of lot 4 of the Si. Louis tract or latterly known as the lands of Daniel Kelly;- second, if not a part of lot 4, but a part of the Dun-can tract, which adjoins, claimed to be owned by the defendant, they claim to have had adverse possession of it for a sufficient length of time to ripen into a title.

The plaintiffs showed possession of part of lot four under color of title to the whole since 3856, and offered evidence tending to show adverse possession for ten years (viz., from 1865 to 1897) of the strip of land in controversy.

The defendant, on the other hand, showed possession of a part of the Dnnean tract under color of title to the whole since 1865 and actual possession of the strip of land in suit from 1865 to 1871.

Two srirveyors, who were familiar with both tracts and had surveyed them both, testified that the property in 'dispute is part of lot four, and several non-expert witnesses testified that they 'knew the recognized line between the two tracts and that it coincided with the line ímn by the surveyors. Ou the other hand, several non-expert witnesses testified that they knew the dividing line and that the strip in controversy is upon the Duncan tract.

A creek formed, the southern boundary of the property in controversy and it was without dispute that formerly a gum tree stood at the intersection of the dividing line between the two tracts and this creek. The defendant introduced evidence tending to show that he had, by excavating, found a gum stump and that this was tlie stump of the tree on the dividing line, and that the strip of land in dispute is situate ou his side of the line run from that stump. .

In support of plaintiffs’ title by possession, they offered in evidence, against defendant’s objection, as color of title to lot four, the map and partition proceedings by certain commissioners which described the boundary line between that lot and the Duncan -tract. It may be that this evidence was irrelevant at the time it was offered, but when coupled with the proof of possession by Kelly of the lot and the reference made tu this map and proceeding in the deed to him by Moody, subsequently introduced, the error, if any, was cured.

- One'Grove, a witness for plaintiffs, testified to knowing the location of the dividing line between lot four and the Duncan tract and to its location. On cross-examination it was made to appear, that the witness, some twenty-six yeans ago, frequently accompanied his father on his visits to the Kelly lot (4) for the purpose of collecting rent for its owner from his tenants. It was during these visits that the witness obtained his knowledge of the line and its location. It was further made to appear that the witness had no knowledge of the line except what his father had told him. Thereupon, the defendant moved the court to exclude “the statements of the witness as to wdiere the line was, because he has no personal knowledge of the facts.” The court excluded “the declaration of the witness that he knew where the line was, but allowed to remain before the jury the statement that his father, who was collecting rents for pensions claiming the property, told him where the line was,” to- which an exception was reserved. It is manifest from the motion that the defendant was endeavoring to exclude from the jury the location of the line by the witness based upon declarations made to him by his father; and it is equally clear that the court did not exclude those facts from the jury. In failing or lather in refusing to do so, there was error. It is true, that declarations of persons may be introduced in evidence for the purpose of showing ancient boundaries, but to render such evidence competent and to bring it within the exceptions recognized, to free it from the objection of being hearsay, unless the declarant is the owner and in possession at the time of making the declaration, such person must be shown to be dead and shown to have had opportunities to know and prima facie that he had knowledge of that whereof he speaks and to have been on the land at the time of making the declaration or in possession of it when lie-made the declaration. To loe in evidence, they (the declarations) must have been made when the declarant Avas pointing or marking the boundaries or discharging some duties thereto. And we may add, as a further limitation, the declarant must have had no interest to misrepresent, and that the declaration must have been made ante litem motam. — Hunnicutt v. Peyton, 102 U. S. 364; Payne v. Crawford, 102 Ala. 387; 1 Greenl. Ev. (16th eel.), §§ 131-140a.

‘There is no merit in the objection to the testimony of Boss. It was entirely competent to show hy him, who is shown to have been an engineer for forty years and to have surveyed the lines around the two tracts and to have known these lines for thirty years, that the lines as shown upon the map in evidence exhibited to him were correct. — Donahoo v. Johnson, 120 Ala. 438. So too there ivas no error committed in refusing to limit the inquiry to this witness to the correctness of the line, as shown by the map, at the point of dispute. If the other portion of the line between the two tracts was correct, it was a circumstance which the plaintiffs had the right to have go to the jury, to aid them in determining the correctness of the line in dispute.

There was a suggestion upon the record of three years 'adverse possession by the defendant of the strip of land in controversy. Exceptions were reserved by defendant relating to the exclusion and admission of evidence bearing upon his right to have the jury assess the value of certain boilers attached to the land by brick masonry with a house over them, the masonry resting on the ground and a certain log carriage which is intersected by the line as claimed by plaintiffs to be the correct line between their respective lands. When the jury find the suggestion to be true, the defendant is entitled to have them assess the value, at the time of the trial, of the permanent improvements made. by defendant, or those whose estate he 'has, and also ascertain by their verdict the value of the lands and of the use and occupation thereof, not including the increased value by reason of such improvements, etc. — Code, §§ 1536, «.1537. 'To constitute structures upon lands, permanent improvements, they must be so attached to the land as to become a part of it; and to entitle a defendant to compensation for them, it must be shown that the value of the land itself was enhanced by them. — Donahoo v. Johnson, 113 Ala. 130; 10 Am. & Eng. Ency. Law (1st ed.), 243. If the boilers and carriage were fixtures, and increased the value of the land, we entertain no doubt of the right of defendant to have their value assessed by the jury. If, on the other hand, they are personalty or if the value of the land is not. enhanced by them, then the defendant is not entitled to have their value assessed by the jury. The burden of proving the truth of the suggestion and of showing that the improvements, claimed by him are a part of the land, their value, and that the value of the land is enhanced by them, is upon the defendant. These general principles will doubtless serve as a sufficient guide upon another trial, should the question arise again.

What we have said disposes of all the assignments of error insisted upon in argument except the written charges which were given at the request of the plaintiffs. It is not necessary to examine separately each of these charges. The principles of law asserted in them are correct. They may be summarized as follows:

1. In ejectment, the plaintiff may recover against a mere trespasser upon proof of prior possession alone. Payne v. Crawford, 102 Ala. 399; Gist v. Beaumont, 104 Ala. 350; Michel v. Montgomery, 111 Ala. 420; Branch v. Smith, 114 Ala. 464.

2. The possession by a coterminous owner up to a iine erroneousy believed to be the true line, is not presumably adverse, but may be so if the claimant claims it as the true line and holds the property up to it, claiming it as his own.- — Holt v. Adams, 121 Ala. 664; Hess v. Rudder, 117 Ala. 526; Taylor v. Fomby, 116 Ala. 621.

3. Actual possession of a part of a tract under color of title extending to the whole, is sufficient- possession as to the whole to ripen into title by the lapse of time. And this possession may be held by and through a tenant. — Smith v. Keyser, 115 Ala. 455.

All of the charges are based upon one or more phases of the evidence.

Reversed and remanded.