McDaniel v. Sloss-Sheffield Steel & Iron Co. , 152 Ala. 414 ( 1907 )

SIMPSON, J.

These two cases were tried together, and submitted here together, by agreement. The bills were filed by the appellant, and sought to quiet the title as against both defendants to N. E. 1-4 of N. E. 1-4 of section 17, township 18 S., range 1 W., in Jefferson county, and as to the Tennessee Coal, Iron & Railroad Company to the four 40-acre tracts of land in said county described as follows: The N. W. 1-4 of the N. E. 1-4 and the N. E. 1-4 of the N. W. 1-4 of section 17, and the S. W. 1-4 of S. E. 1-4 ánd S. E. 1-4 of S. W. 1-4 of section 8, all in township 18 S., range 1 W. The parties agreed in writing that the defendants, respectively, held perfect paper titles to the land and that the complainant claimed only by adverse possession. No claim of adverse possession, under Code 1896, § 1541, has ever been filed by the complainant. The testimony shows that complainant is living in a house on the N. E. 1-4 of section 17, township 18, range 1, around which is a fence inclosing 6 or 6 1-2 acres. The decree of the chancellor declares that the defendants have the legal titles to all of the lands respectively claimed by them, and are entitled to the same, except as to the surface of said home place; the minerals thereunder being owned by the Sloss Iron & Steel Company.

The complainant testified that he entered upon the land in 1872, built the house, sold out his claim, and af-terwards bought it back, moving there the second time January 10, 1882, since which time he has continued to live there, and that it has been fenced practically all of the time; that he claimed it as his home from the first, but that he knew when he entered it that he did not have any title to it; that he thought it belonged to the United States government; and that he had as much right to it as any one. There was testimony by the complainant and others about complainant’s cutting timber on the lands at various places and times. There was also testimony to the effect that there was a field, besides the home place, that had been cultivated by the complainant; hut there is not in the record any definite discretion of said field on which a decree could be rendered, and while it is stated that it was cleared and enlarged from time to time, there is no evidence from which it could be definitely said that any specified portion of said field had been occupied for any definite time. In order to establish adverse possession, as against the holder of the legal title, “the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive, and notorious; second, it must be continued, adverse, and exclusive during the whole period described by the statute ; third, it must he with an intention to claim title to the land occupied.” — -3 Washburn on Real Property (4th Ed.) pp. 135, 136. “Where a party enters upon land and takes possession, without claim of title or right, his occupation is subservient to the paramount title, not adverse to it. It is nothing more than a trespass, and, no matter how long continued, can never ripen into a good title.” — 1 Cyc. p. 1029; Bernstein v. Humes, 78 Ala. 135, 138, 142; Badger v. Lyon, 7 Ala. 564. Of course, this principle must not he so extended as to contravene the other principle that a party may claim adversely, though he knows that his title is defective, but he must claim a right to the land. The “possession must he under claim of right or title.” — 1 Cyc. p. 1008; Newton v. L. & N. R. R. Co., 110 Ala. 474, 478, 19 South. 19; Bernstein v. Humes, 75 Ala. 241, 244; Dothard v. Denson, 72 Ala. 541, 544, 554; Kennedy’s Ex’r v. Townsley’s Heirs, 16 Ala. 239, 247.

Even if a person who acknowledges that be went into possession as a mere trespasser without any claim of right, could be said to be holding adversely to the true owner, the evidence in this case does not come up to the requirement of the law as to that part of the land which the chancellor decreed to the defendants. — Chastang v. Chastang, 141 Ala. 451, 458, 37 South. 799, 109 Am. St. Rep. 45, and cases cited. The statute does not provide for any more distinct decree in favor of the complainant than was rendered in this case, but provides only that the court shall “decree whether the defendant has any right, title, or interest in, or incumbrance upon, such lands, or any part thereof,” etc., and makes the decree binding on both parties. — Code 1896, § 812. The decree of the court is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Denson, JJ., concur.