Nearen v. State

SIMPSON, J. The appellant was convicted of the offense of “trespass after warning.” The prosecutor does not show any actual possession, but claims constructive possession, by reason of the fact that he had received a conveyance of the land from another party, [157] at a time when he already had a small strip of this 40-acre tract within his fence, and had afterwards extended his fence a little farther, bub not nearer than 150 or 200 yards to the place where it is claimed the trespass was committed. The defendant claimed to represent one May, who is shown to hold the legal title by complete chain from the government, and who testifies that “he has owned the land since 1891 or 1892, and has been in possession of the land, claimed it as his, and been paying taxes on the land, all this time.” If the holder of the legal title enters under the same, “no subsequent constructive possession, even under col- or of title, could overlap his possession.” — Chastang v. Chastang, 141 Ala. 451, 463, 37 South. 799, 803 (109 Am. St. Rep. 45). So, even if the act of the prosecutor in extending his fence could he construed into the taking of possession under his deed, his constructive possession under his deed could not overlap the previous constructive possession in the holder of the legal title. The possession of the land in question, was then in May, and not in the prosecutor. Consequently the defendant could not be convicted for trespassing on the possession of the prosecutor. The general charge in favor of the defendant, which was requested in writing, should have been given. The judgment of the court is reversed, and a judgment will he here rendered discharging the appellant. Reversed and rendered. Tyson, C. J., and Anderson and Denson, JJ., concur.