Hamilton v. Brent Lumber Co.

MoCLELLAN, C. Bill filed by Brent Lumber Co. against Hamilton to. enjoin trespasses. Alleged ■trespasses consist in cutting and removing trees. Com-. plainant avers that it has title to the timber on certain lands. Respondent alleges that the timber belongs to him. Neither party assert any title to the land itself. The couxd tried the ease in recognition of this dispute as to the title in and to the timber interest and of its own want of jurisdiction to determine in which party the title resided. Thus proceeding, it found that the constructive possession of the inteiest in issue was in the complainant, and decreed that “the injunction hereto'ore issued is continued until defendant shall have had reasonable time to bring his action at law to adjudicate his title to the disputed land, and on failure on his part to bring such action,, this injunction to be made perpetual on motion of complainant.” The bill does not aver that complainant has possession of the land or of the timber interest in it. The evidence does not show that complainant had possession of the land or of such interest. The chancellor overlooked this want of averment as to complainant’s possession. He expressly found that complainant did not have the actual possession. And yet he found that for the purposes of this case and for the purposes of an action for recovery of the land, or this timber interest, at law the possession was in the complainant. He reached this conclusion upon a consideration of the issue of title presented by the pleadings, a determination by him of that issue in favor of the complainant, a finding that, neither party was in the actual possession, and the application of the doctrine which refers the possession to the title. We think the court below was at fault in all this. The conclusion is rested upon a finding which it had no jurisdiction to make. Under all the authorities the ■chancery court is without jurisdiction, to determine a question of disputed title on a bill to restrain trespasses upon land. — Ashurst v. MvKenzie, 92 Ala. 490, and cases there cited; Kellar v. Bullington, 101 Ala. 267; Bowling v. Crook, 104 Ala. 138; and the rule is as potent against the determination of such question in such case [85] for one purpose as for another: the court is as much without power to determine that the title is in one party for the purpose of ref erring - possession to that party and putting the burden of action at law upon the other claimant of title, as it is to finally adjudge title between the parties and dispose of the case- accordingly. Moreover, there being no averment in tlie-bill of possession in the complainant, it would seem that under no state of the evidence and under no application of the principle that possession will be referred to the title, conceding that principle could be -applied at all, would the court have been authorized to find that complainant was in possession, the absence of averment of possession being -as fatal to such conclusion as the absence of evidence. But pretermitting the foregoing consideration and-looking alone to the evidence, it is entirely clear that complainant is not, -and was not at the time the bill was filed, or at the time the decree was rendered, in the actual possession, and, on the other hand, it is -shown to our reasonable -satisfaction that the respondent had at each of the times referred to and during the intervening periods such actual possession as the character of the land and the nature of the disputed interest in it reasonably admitted of. On this state of case the -onus was upon the complainant to institute an action at law to determine the question of title — an' action to recover the possession thus shown to be in the respondent— and the chancellor erred in imposing that burden upon the respondent. We cannot adopt the view of complainant that the personal action it has instituted for the value of trees taken from the land by respondent is one in'which title may and will be determined, nor the view of respondent that inasmuch as complainant might have brought its real -action at law when the bill was filed, or even before or at any time since, it has had such reasonable time to do -so, that it should not now be -allowed further opportunity to have the disputed title settled at law. We think the decree below should have required complainant to sue at law and allow him -a reasonable time to do -so. .The court below also erred in finally decreeing costs against respondent. [86] The decree below will be reversed and a decree will be here entered continuing the injunction until the complainant shall have had a reasonable time to bring its action at law to recover the possession of the realty in controversy, the injunction to be dissolved and the bill dismissed on respondent’s motion in the chancery court if such action be not seasonably instituted and diligently prosecuted by complainant. Reversed and rendered.