Marietta Fertilizer Co. v. Blair

McCLELLAN, J. Statutory ejectment, by appellant against appellees, to recover the E. ;,/2 of section 6, township 22, range 6, in Clay county, Ala. The trial was by the court without jury. Upon the whole evidence there can be no reasonable doubt that since 1860 (and probably before) the predecessors, in asserted right, of the appellees Donaldson and the named appellees have been in the actual adverse possession, at least under color of title, of approximately 20 acres of the 320-acre tract in controversy. It is now urged upon the authority of Lawrence v. Alabama State Land Co., 144 Ala. 524, 41 South. 612, that for want of evidence, to the particular effect stated in the cited decision, the adverse possession of a part of the half section in question cannot be extended to the boundaries.described in the color of title under which such adverse possession was taken and held for more than 25 years before this action was instituted. The general rule is, and has long-been, that where one enters under color of title, in good faith, upon a tract of land his adverse occupancy of a part thereof will extend his adverse possession of that not adversely occupied, by another, to the boundaries described in the color of title. — Black v. T. C. 1. & R. R. Co., 93 Ala. 109, 110, 9 South. 537; Henry v. Brown, 143 Ala. 446, 39 — 528 — South. 325; Woods v. Montevallo Coal Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393; Crowder v. T. C. 1. & R. R. Co., 162 Ala. 151, 50 South. 230, 136 Am. St. Rep. 17; Clarke v. Dunn, 161 Ala. 633, 50 South. 93; Barry v. Madaris, 156 Ala. 475, 479, 47 South. 152; Campbell v. Bates, 143 Ala. 338, 39 South. 144; Stovall v. Fowler, 72 Ala. 78; Burks v. Mitchell, 78 Ala. 63; Lucy v. Tenn. Co., 92 Ala. 246, 8 South. 806; Childress v. Calloway, 76 Ala. 133; Farley v. Smith, 39 Ala. 38, 44; Bell v. Denson, 56 Ala. 444; Torrey v. Forbes, 94 Ala. 135, 141, 10 South. 320; Formant v. E. Co., 98 Ala. 181, 12 South. 454, 39 Am. St. Rep. 45; Ryan v. Kilpatrick, 66 Ala. 332; Smith v. Keyser, 115 Ala. 455, 460, 22 South. 149; Bailey v. Blacksher Co., 142 Ala. 254, 37 South. 827; Baucum v. George, 65 Ala. 259, 268, 269; Hughes v. Anderson, 79 Ala. 209, 215 ; Watson v. Mancill, 76 Ala. 600, 601. See, also, Ellicott v. Pearl, 10 Pet. 412, 413, 9 L. Ed. 475; Rose’s Notes, pp. 593, 594; Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103, and note; and other decisions of this court cited in them. An exception to the general rule was recognized by this court in Woods v. Montevallo Coal Co., supra, as existing in those cases where the conveyance is of “two separate and distinct tracts” of land, to only one of which the grantee becomes invested with the legal title, and the actual occupancy is of that tract. In such cases the true owner of the other tract is not disseised and the possession under the color of title thereto is not extended to include such tract. — Henry v. Brown, supra; Crowder v. Tenn. Co., supra. As is seen, one of, if not the, controlling factors creating this exception lies in the separableness, the distinctness, of the tracts conveyed. And this court has well determined that each governmental subdivision or quarter-call does not, in itself alone, constitute a separate, distinct tract — 529 — of land. — Crowder v. Tenn. Co., supra. The announcement, in respect of this exception, in Woods v. Montevallo Coal Co., supra, was bottomed on Bailey v. Carlton, 12 N. H. 9, 87 Am. Dec. 190. Reference to 5 Notes to Am. Dec. pp. 1216-1218, will show the consideration given Bailey v. Carleton by other jurisdictions. Unless our decision in Lawrence v. Alabama State Land Co., supra, established another exception, than that to which we have referred, to the general rule before stated, this court has not, so far as we are advised, authoritatively done so. And it may he here pronounced that the case at bar does not present a status within the terms of the exception declared in Woods v. Montevallo Coal Co. and in the two recent decisions tailing account of its doctrine in this particular. • The character of the extended possession to contiguous lands, under color of title, beyond that, within the boundaries defined by the color of title, actually occupied by the adverse claimant, is, in legal contemplation, actual, not constructive. — Black v. Tenn. Co., supra; Stovall v. Fowler, supra. Such possession, under color of title, may he restricted, as to area within the defined boundaries, by actual possession of another. — Ryan v. Kilpatrick, supra; Ellicott v. Pearl, supra; Watson v. Mancill, supra. So affirmatively is the general rule before stated that “color of title is sometimes said to be a substitute for a substantial and permanent fence around the premises claimed.” — Hughes v. Andersosn, 79 Ala. 215; Sedg. & Wait on Land Titles, § 667. The relative, proportionate area, of the whole contiguous tract, actually occupied by an adverse claimant, is not a factor, under our decisions — a qualifying element — in determining the effect of the application of the general rule previously reiterated. — Watson v. — 530 — Mancill, supra; Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed. 475, followed by this court in Bamcum v. George, 65 Ala. 269. Reason, if not the weight of authority in other jurisdictions, confirms the soundness of this conclusion.- — Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103, and notes thereto; 1 Cyc. 1127. To ingraft such a qualification — exception—upon the general rule would interpose a factor necessarily uncertain in application, if, indeed, not requiring the exercise of a purely arbitrary discretion in establishing the boundaries of the adverse claim. This qualification or exception to the general rule seems to have been recognized in Vermont, New York and Michigan, and perhaps Minnesota. The Vermont court, in Chandler v. Spear, 22 Vt. 388, found its authority, in part, in Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 Am. Dec. 525. Our court, in Black v. Tenn. Co., 93 Ala. 112, 9 South. 537, interpreted Jackson v. Woodruff as according with the general rule prevailing in this State; a rule that takes no account of the proportion the actually occupied area bears to the whole contiguous tract, or to the nature of the lands adversely claimed or to the custom (if such there is or could be) of the country in respect of the size of landed holdings for' the many purposes for which that is done. We cannot be unmindful of the fact that very large areas of land are and have been held in this State by individuals and corporations for timber, farming, and mineral purposes. What standard could be thereto fixed as determinative of what area would, in such cases, be subservient to or reasonable and proper for use with, the area actually occupied, under color of title, cannot, with any approach -to definiteness, be pronounced. There is, in this State, no custom, in that regard, of which we are aware. Ability to acquire a landed estate, coupled with a desire to do so, fixes the — 531 — only territorial limit to such activities, upon or in the •soil, as farming, timber gathering or culture, and. mining. The open, notorious, actual, hostile possession of a part of the contiguous lands described in the color of title, with claim in good faith to the whole, is the basis of the presumption of notice, of adverse claim, to the true owner. Author, supra. The extent of the area to which the true owner has title cannot be a satisfactory factor in determining the question of notice, of adverse claim by the adverse occupant of a part under color of title, to the true owner. If that were accepted' as a factor, the question would at once arise, What relation, in proportion, must the land actually occupied by the adverse claimant under color of title bear to the true owner’s entire contiguous tract? As appears, the inquiry would submit a problem without definite minuend or subtrahend, and without rule whereby to ascertain them. Apart from this, however, it is but reasonable to assume, as the law does, that the true owner, regardless of the extent of his contiguous area, cannot be ignorant for ten, continuous years of an open, notorious, actual, hostile possession, by another, under claim to the boundaries defined in his color of title, of any part of his lands. Practically applying the pertinent doctrines we have but restated, this court, in Watson v. Mancill, 76 Ala. 600, justified the right of the adverse claimant (Mandil) to 40 acres of land, notwithstanding the actual adverse possession was of 1 acre only, accompanying a claim to the whole 40. The actual adverse possession, in that case, was of l-40th of the area adversely claimed. Greater disproportion, in respect of the actual adverse possession, of a part to the whole could rarely occur. In the light of these considerations, the qualifications of the general rule before stated, imported in some ex — 532 — pressions, not necessary to the decision, in Lawrence v. Alabama State Co., are dicta and are, hence, not authoritative; are not in accord with the settled rulings of this court. In the case at bar the evidence fully justified the trial court in finding that from 15 to 20 acres of the half section in suit was actually cultivated, under adverse claim of ownership of the entire half section under color of title, for more than 25 years. Accordingly, the defendants (appellees) Donaldson were correctly adjudged to have acquired the title to the half section in question, and, in consequence, that the plaintiff should not recover. We find no prejudicial error in the record. The judgment is therefore affirmed. Affirmed. Simpson, Anderson, Mayfield, and Somerville, JJ., concur.