Inglis v. Freeman , 137 Ala. 298 ( 1902 )

TYSON, J.

It is not insisted that- the bill filed in this cause has equity for the purpose of restraining the criminal prosecution instituí;eld by respondent against complainant for an alleged trespass upon the lands described in the bill. If such was the insistence, it could not be sustained. — Moses v. Mayor of Mobile, 52 Ala. 198; Forcheimer v. Port of Mobile, 84 Ala. 126. It is, however, contended that the bill has equity to compel the determination of the respective claims to the trees growing upon the lands belonging to respondent, which, it is alleged, were sold by her to the complainant and to quiet the title to the same, under and by virtue of section 809 of the Code. It is true this statute is remedial and must be liberally construed, but it may well he doubted whether the owner of trees, with no right of- title to the surface of the laud upon which they stand, having- simply a right of ingress and egress over the land for the purpose of taking away the trees conveyed to him' (Heflin v. Bingham, 56 Ala. 566), can maintain a bill under its provisions. But be this as it may, it is clear to us, on the facts alleged, that this bill is wholly without equity. “The purpose of the statute was to relieve, not persons who had the power to test the hostile claim by a direct proceeding in the usual mode, hut to aid those persons whose situation afforded them no such opportunity. The inequity that was designed to be remedied grew out of the situation of a person in tire possession of land as owner, in which land another person claimed an interest which he would not enforce; and the hardship' was that the person so in possession could not force his adversary to sue and thus put the claim to test.” It is true the statute does not require the complainant- to “have title by possession or the right to possession or even adverse possession,” but it does require that he shall have peaceable possession, as contradistinguished from disputed or contested possession, and that it shall be under claim of ownership. — Adler v. Sullivan, 115 Ala. 582; Brand v. U. S. Car Co., 128 Ala. 579.

On tire facts alleged, the complainant can test his right and title to the trees by an action at law. — Tenn. & Coosa R. R. Co. v. East Ala. R’y Co., 75 Ala. 524; 525; Williams v. Gibson, 84 Ala. 228; 10 Am. & Eng. Ency. Law, 472, 478; Clay v. Draper, 3 Am. Dec. 215; Tillinghast Adams on Ejectment, pp. 18* et seg.

Affirmed.