Pearce v. Aldrich Mining Co.

ANDERSON, J.

— The general rule is that when things, which in their natural state, form part of the freehold, are severed therefrom, and converted into chattels, they belong to the owner of the land. Mere changes in the form of things, so long as the identity of the material can be traced, will not work a change of ownership. And trover or detinue may be maintained for their conversion or detention, if they are removed from the freehold. The owner of the freehold cannot, however, maintain either of these actions if, at the time of the severance, he had not actual or constructive possession of the land — if the land was then held and occupied adversely to him. — Cooper v. Watson, 73 Ala. 252; Adler v. Prestwood, 122 Ala. 367, 24 South. 999; Brooks v. Rogers, 101 Ala. 111, 13 South. 386.

It is also well settled that, unless it is necessary to prove a constructive possession of land the title thereto cannot be put in issue in these transitory actions. Or, as was said by this court, speaking through Brickell, C. J., in the case of Fielder v. Childs, 73 Ala. 567, and again in the case of Cooper v. Watson, supra, “the law will not permit the title to land to be inquired into directly.”

We find no case, hoAvever, in this state, holding that the title to land cannot be proved for the purpose of shoAving constructive possession other than the opinion upon the former appeal in this case (169 Ala. 161, 52 South. 911, Ann. Cas. 1912B, 288), and which follows a dictum in the Watson Case, supra; but we do find several cases holding that it can be done. — White v. Yawkey, 108 Ala. 270, 19 South. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159, wherein the case of Cooper v. Watson was cited in support of the holding that to maintain trover for the conversion of timber severed from land, legal title in the plaintiff, which draws to it construetive possession, is, in the absence of adverse possession of another, sufficient. See, also, Adler v. Prestwood, supra; Lyons v. Stickney, 170 Ala. 134, 54 South. 496; Powers v. Hatter, 152 Ala. 636, 44 South. 859. Indeed, all of the authorities hold that such an action can be maintained by a plaintiff either in the actual or Constructive possession, but cannot be maintained against one in possession and holding adversely to the plaintiff. Of course, if another is, at the time of the severance, in the adverse possession of the land, the plaintiff cannot maintain the action, as he cannot have either the actual or constructive possession, for there can be no actual possession to the same land by two distinct claimants, nor can there be a constructive possession in the plaintiff when another is in the actual, adverse possession. If on the other hand, the plaintiff is in the actual possession of the land, he can recover, or if no one was in the actual possession at the time of the severance, the law draws the-constructive possession to the legal title and the way to establish said constructive possession is by showing title. It would be quite an anomaly to hold that a plaintiff who had constructive possession could recover, and then cut him off from showing said constructive possession upon the idea that it would convert such an action into a trial of the tide exclusively. The policy of the law is to permit a plaintiff in possession to litigate with a tort-feasor for the things severed, and to recover upon his possession, either actual or constructive, but if the defendant was in the adverse possession at the time of the severance, the law will not permit a recovery by allowing the plaintiff to establish directly his title to the land. This rule, however, does not preclude a plaintiff from recovering upon his constructive possession as against one not in the actual adverse possession, or from showing title to the land as an incident to his constructive possession.

. The former opinion in this case (169 Ala. 161, 52 Ala. 911, Ann. Cas. 1912B, 288), in so far as it holds that a plaintiff cannot show title to the land for the purpose of showing constructive possession, notwithstanding there may be no actual adverse possession by the defendant, is unsound and must be overruled. The opinion seems to be grounded largely upon an expression in the latter part of the opinion in the case of Cooper v. Watson, supra, and which was not decisive of that case, as the proof tbere showed that the defendant was in the adverse possession at the time of the severance, and, that being the case, there was no room for constructive possession. Moreover, the opinion states that a plaintiff can recover if in the actual or constructive possession at the time of the severance, and it is contradictory and inconsistent to hold that he cannot show title to the land which draws with it constructive possession, and which is the only practicable way to establish said constructive possession to the land.

The case of Powers v. Hatter, 152 Ala. 636, 44 South. 859, supports in the conclusion the present holding, but the rule there stated as to the action of trover is incorrect. The writer evidently applied the general rule as to trover, and overlooked the fact that the suit involved chattels severed from the freehold, and so much of the opinion, as states that the plaintiff did not have to show possession, actual or constructive, as to the trover count, or that recovery could only be defeated by showing a divesture of title, is overruled.

As we view this case, the first inquiry to be submitted to the jury was the location of the line. If the coal was not taken from the 40 acres claimed by the plan-tiff in section 10, then the plaintiff could not recover, but this Avas a question for the jury, as there was a conflict in the evidence as to the location of the proper line betAveen the two tracts. If the coal was taken from the 40 claimed by the plaintiff, the next inquiry was, Who was in the possession at the time the coal was mined? The plaintiff did not show actual possession at the time the coal was mined, as the acts of the Nelsons did not rise.to the dignity of such actual possession as would carry with it notice. He did show evidence, however, from which the jury could conclude that he had acquired title to the land by adverse possession, and which drew to it the constructive possession, unless the land was in the adverse possession of the defendant when the coal was mined. The plaintiff showed possession of the 40 from 1877 to 1891, under color of title, and if it was open, hostile, notorious, and continuous, it ripened into title. It may be true that if there is a break in the continuity of the possession, it is fatal, and the jury could find such a break from the direct testimony of the witness Spiller as to when he suceeded to the possession of Elliott, but upon cross-examination, he stated that he “moved there right after Mr. Elliott gathered his Avheat crop.” This, therefore, made it a question for the jury as to whether or not the possession of those holding under and for the plaintiff had been continuous.

The defendant offered evidence tending to show that it was in the adverse possession of the strip when the coal was mined, and if it was, the plaintiff could not recover, for if the defendant had, at the time, the actual adverse possession of the strip, there Avas no room for constructive possession even if the plaintiff had previously acquired title, but this, too, was a question for the jury, as the mere act of the defendant in mining the coal did not give him such an actual adverse possession as would defeat the plaintiff’s constructive possession under Ms title, if the jury found that he had title; and, while there was some evidence tending to establish adverse possession of the defendant to the surface, it was disputed and was a question for the jury.

Nor are we impressed with the soundness of the suggestion that the arrangement that the plaintiff had with the Nelsons was such as would deprive him of the right to the immediate use or possession of the land so as to bring him within the influence of Garrett v. Sewell, 95 Ala. 456, 10 South. 226. The evidence shows that the Nelsons were not tenants of the land for any fixed period, or at all, but were merely plaintiff’s agents to look after it for him.

The trial court, in giving the general charge for the defendant, followed the former opinion in this case, but, as said opinion is overruled, the general charge was improperly given, and the judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan, Sayre, Somerville, and de G-raffenried, JJ., concur.