Louisville & Nashville Railroad v. Philyaw

McCLELLAN, J. The assignments of error, which are directed against the rulings of the Circuit Court on objections to evidence, are virtually withdrawn in the argument of appellant’s counsel, and we are requested to consider only those assignments which involve the correctness of the lower court’s refusal to give the several charges requested by the defendant — appellant here. This court has uniformly held, that the refusal to give a charge, however sound may be the proposition of law it asserts, is not ground for reversal, unless the record shows affirmatively that there was evidence tending to prove every fact it supposes, or as to which it raises an inquiry.— Williams v. Barksdale, 58 Ala. 288; Hill v. Townsend, 69 Ala. 286; M. & E. R. R. Co. v. Kolb, 73 Ala. 396; Westbrook v. Fulton, 79 Ala. 510; Jackson v. Tate, Muller & Co., 81 Ala. 253. [268] The 2d, 4th, 5th and 7th charges requested by the defendant were bad, because each of them raised an inquiry as to one or more facts which the evidence had no tendency to prove. The facts thus gratuitously supposed to be in some sort supported by the testimony are, in the 2d charge, that “ Milstead cultivated a small portion of the land,” and that “ Milstead and Barrett and the defendant have held the land continuously for more than ten years;” in the 4th charge, that the land had been purchased by the defendant, and that Milstead had paid taxes on it; in the 5th charge, “ that Phil-yaw has not paid taxes on the land, nor had it assessed to him;” and in the 7th, “ that Philyaw never claimed to own but forty acres in section 35, township one, range eight.” Each of these instructions was, therefore, properly refused. The effort of defendant was, it seems, to tack the possessions of Milstead, Barrett and itself, and thus constitute an adverse holding for the statutory period of ten years. This can not be allowed, for two reasons. One is, that no privity whatever is' shown between Milstead and Barrett, on the one hand, and the defendant. — -Taylor on Eject. 911: Burwell Lim. & Adv. Poss. §§238-241; Hanson v. Johnson, 50 Amer. Rep. 199; Riggs v. Fuller, 54 Ala. 141. The other consideration, which serves to defeat the claim of adverse possession is, that no one of the parties in whom it is attempted to show such holding, nor all of them combined, are shown to have had continuous possession for the time necessary to vest title. Milstead was in actual possession not exceeding nine years, and it is open to grave doubt whether this was hostile to Philyaw. He then abandoned the premises, and moved out of the State. But it is insisted that his possession must be held to have continued, notwithstanding this fact, because the taxes on the property for two years subsequent to his removal were assessed against him. Such an abandonment, even for a single day-here it was for an indefinite period-will stop the running of the statute (Olwine v Holman, 25 Pa. St. 279), and the rightful owner is, by operation of law, restored to the possession. — Core v. Faupel, 24 W. Va. 238. Nor would this result be affected by the subsequent payment of taxes- — much less, their mere assessment (Ruffin v. Overby, 88 N. C. 369), or though the abandonment was with an intention to return. — Susquehana Railway Co. v. Quick, 68 Pa. St. 189. Milstead’s possession was not sufficient, therefore, to pass title into him. Several years after his abandonment he conveyed to Bar [269] rett. No attempt is made to show that Barrett ever entered at all. The day following the conveyance to Barrett, he conveyed to the Mobile & Montgomery Bailroad Company. No evidence is offered tending, in any degree, to show that this company ever entered, or ever conveyed the land, or delivered possession, to the Louisville & Nashville Bailroad Company, the defendant and appellant in this suit. These facts present the defendant in the- attitude of a naked trespasser. There was evidence of prior actual possession by the plaintiff, under color or claim of title. This actual possession, it appears, or may be conceded, did not continue to the time of defendant’s entry. The proposition, that a recovery in this form of action may be had against a bare trespasser, on proof of prior possession in plaintiff, is not questioned. But it is insisted that the possession must be actual at the time of, and must be disturbed by, the trespass; that, in other words, plaintiff can not recover, unless he shows an actual ouster. The precise point has never been directly adjudged by this court. Upon principle, however, we are forced to dissent from this view. Theright in such case is not predicated on any supposed wrong committed against possession merely; nor upon any theory that defendant is estopped to dispute plaintiff’s recovery of that which the defendant’s wrongful act has deprived him of; nor upon any idea of re-establishing the status in quo of the parties which has been changed by the wrongful entry. These are considerations which obtain in purely possessory actions, proceeding without reference to title. But in ejectment, and in its statutory substitute, title is always involved. Becovery is not allowed upon prior possession per se, strictly speaking, but on the title which prior possession evidences. It is a basis of recovery against a trespasser, not because of the abstract fact that the plaintiff has previously occupied the land, but because of the presumption of title in the plaintiff which that fact raises. That against a bare trespasser such possession is sufficient proof of title, is the true meaning of the rule; and title -once shown to exist, whether by the probative force of occupancy or otherwise, it is presumed — -conclusively against such trespasser — to continue. It is not conceivable how, consistently with this well established presumption of the continuance of title once shown, inquiry as to the period covered by prior possession, or as to the point at which it determined, can become material. — Clements v. Hayes, 76 Ala. 280, [270] This interpretation of the rule, which satisfies its requirements without proof of actual occupancy by the plaintiff up to the time of defendant’s wrongful entry, is supported, negatively at least, by the case of Crosby v. Pridgen, 76 Ala. 387, in which the prior possession relied on was shown to have been more than ten years before suit brought, and it was held insufficient, not because it did not continue to the trespass, but because it was not shown to have amounted to actual occupancy. This view is also sustained by the extent either party may go in adducing a possession prior to that relied on by the other. Thus the defendant, even though he be a trespasser otherwise, may show another possession antedating that shown by the plaintiff; and the plaintiff may successfully respond, by admitting such previous holding, and giving evidence of another occupancy by himself still more remote in the past; and so the presumption of title re-' suiting from prior possession “may be removed from one side to the other, toties quoiies, until one party or the other has shown a possession which can not be overreached, or puts an end to presumptions by showing a regular legal title, or a right of possession.” — Smith v. Lecatt, 1 Stew. 590. The possession of the plaintiff, which the evidence tended to establish, was therefore of that character to which the law imputes title as against the defendant, and it could not be defended against by proof of title in third persons, between whom and the defendant there was no privity. Eakin v. Brewer, 58 Ala. 597; Wilson v. Glenn, 68 Ala. 386; Crosby v. Pridgen, 76 Ala. 387; Green v. Jordan, 83 Ala. 223; Ware v. Dewberry, 84 Ala. 568; Anderson v. Melear, 56 Ala. 621. Charges 3 and 6 would have denied plaintiff’s right to recover ,on proof of prior possession alone, and authorized the jury to find for the defendant, on the ground that the legal title was in a third person, with whom or whose right defendant had no connection. The charges were properly refused for this reason, and perhaps, also, for the reason that they submitted a question of law to the jury. The latter point, however, is not decided. Judgment affirmed,