Mobile & G. R. R. v. Rutherford

ANDERSON, J. — It has been repeatedly held by this court, that section 2830 of the Code of 1907, and its predecessor, in requiring the filing of a written declaration of a claim to land in order to set up adverse possession thereto, has no application to a rightful possession, or to possession under color of title, or to possession under a bona fide claim of inheritance or purchase. —Dixon v. Hayes, 171 Ala. 498, 55 South. 164; Owen v. Moxon, 167 Ala. 615, 52 South. 527; Holt v. Adams, 121 Ala. 664, 25 South. 716; Sledge v. Singley, 139 Ala. 346, 37 South. 98; Bowling v. M. & M. R. R., 128 Ala. 550, 29 South. 584. Whether or not the deeds in question, having fixed one of the boundaries of the lot conveyed by the plaintiff’s right of way, would give color of title to any land that went beyond said boundary .we need not decide, as the deeds conveyed the storehouse and lot upon which it was situated, and the defendant entered under a bona fide purchase of said storehouse and the lot upon which it was situated, regardless of the description given the lot in the deeds, and he and his predecessors, who purchased in like manner, did not have to comply with the statute in question in order to set up adverse possession. It may be true that the defendant does not bring himself strictly within the exception provided by section 2830 of the Code of 1907, which has somewhat changed the statute from its for [207] mer phraseology; but, be that as it may, there was evidence from which the jury conld find adverse possession for more than ten years previous to the adoption of the Code of 1907. It is also true that when a coterminous owner goes over his line, intending only to claim to the true line, he is not an adverse claimant; but the defendant in the case at bar, and his predecessors, having purchased the storehouse and the land upon which it stood, and having been in possession of same for years, it was a question for the jury to determine whether or not they intended to claim the storehouse and lot covered by it regardless of the boundary line of plaintiff’s right of way or merely intended to claim to the true line of the said right of way. Their mere going into possession under a deed fixing the plaintiff’s right of way as the boundary was no conclusive estoppel against the defendant from acquiring adverse possession to the storehouse and the lot upon which it was situated, notwithstanding it may have encroached upon the plaintiff’s right of way. The recital might affect the paper title, if the defendant relied upon paper title, but he purchased the store and lot; and if he intended to claim it adversely for the requisite period, regardless of the line of the right of way, the jury could find that he had acquired title to the narrow strip covered by the store by adverse possession, and the trial court properly refused the general charge requested by the plaintiff. The case of Alexander City Co. v. Cen. of Ga. Ry. Co., 182 Ala. 516, 62 South. 745, is not in conflict with the present holding, as that case makes no reference to the statute above considered. Nor does it hold that there can be no adverse holding to a part of the right of way of a railroad. The fifth headnote to the case as reported in the Southern Reporter indicates that there can [208] be no adverse bolding to the right of way of a railroad, but it is based upon quotations in the opinion and not upon the real bolding of this court. The judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.