Brasher v. Shelby Iron Co. , 144 Ala. 659 ( 1906 )

ANDERSON, J.

This- ivas an action under section 4137 of the Code of 1896 to recover the penalty therein prescribed for cutting trees. This section gives this right of action only to- the owner. Section 4138 defines the owner to be the owner of the timber, when one owns the timber and another owns the land. So, if there is no ownership of the timber apart from the ownership of the land, the ownership of the timber would necessarily be in the person who owned the land.

The cutting of the timber was not disputed and the defendant proved a complete paper title from the government down. The plaintiff attempted to establish his ownership of the timber by proving title to the land by adverse possession, and the defendant having the paper title, he had to- show such an adverse possession of the land for ten years before the timber was cut as would give him title thereto.

Plaintiff proved a possessio• pedis to a small portion of the land for from fifteen to eighteen years any possessory acts as to all of it, such as cutting ivood and paying taxes on it. Pretermitting the question as to whether or not the possession proved by the plaintiff was sufficient under other conditions to amount to an adverse possession, it would not be so considered in this case. There was no proof of possession for ten years prior to the act of February, 1893, now contained in sections 1541 to 1546 inclusive, of the Code of 1896, and no evidence of the declaration there required, and no proof that plaintiff went into the possession, “under color of title or bona fide claim of inheritance or of purchase;” consequently, the plaintiff failed to show that he was the owner and was therefore not entitled to recover. — Bolling v. M. & M. Ry. Co., 128 Ala. 550.

Counsel practically concedes that plaintiff’s failure to comply with the statute would be fatal to his recovery if this was an action of ejectment, but contends that said statute has no application in the case at bar. We cannot concur in this contention as the plaintiff in order to recover must have shown that he was the owner of the trees, and the only attempt he made to establish his ownership was by adverse possession of the land, and the ■title to which was necessarily involved.

The judgment of the circuit court is affirmed.

Haralson, Dowdell and Denson, JJ„ concurring.