Aldrich Mining Co. v. Pearce

McCLELLAN, J. This is the third appeal of this case. In view of the statements of the controversy to be found in 169 Ala. 161, 52 South. 911, Ann. Cas. 1912B, 288, and Pearce v. Aldrich Min. Co., 184 Ala. 610, 64 South. 321, it is unnecessary to again set down the circumstances of the contest and the general contentions made by the litigants. The court continues [198] satisfied with the announcement of applicable, governing principles made by this court in response to the second appeal. — Pearce v. Aldrich Min. Co., 184 Ala. 610, 64 South. 321-323. Only particular assertions of error as affecting the last trial are necessary to be treated in this opinion. (1) The general affirmative charge requested by and refused to defendant (appellant) was not its due, on the theory predicated of conclusive proof, to the end that at the time the coal was disengaged the land from which it was dislodged was being adversely held by the defendant. There was evidence to warrant the inference that the defendant’s occupancy was under claim of right, and therefore hostile, only up to the true line between sections 10 and 11. — Hess v. Rudder, 117 Ala. 525, 528, 23 South. 136, 67 Am. St. Rep. 182; Wyman v. Walker, 177 Ala. 72, 58 South. 403. (2, 3) The witness Dryer testified to a. survey made by him and to the location of corners from which he got the bearings and distances wherefrom he deduced the line in question between these parties. This testimony in this connection was properly admitted. — Nolin v. Parmer, 21 Ala. 66, 70, 71. On his cross-examination by the defendant’s counsel he was asked if he was certain that one of the corners located by him was at the point fixed by the government. He replied that he was not certain. Thereupon counsel for defendant moved the court- to “exclude all the above evidence of the witness Dryer about locating the corner.” The motion to exclude was quite indefinite, leaving much to judgment or discretion as to what exact part of the testimony of the witness was within the motion to exclude. Such motions, so uncertain as to their scope and subject, might well be discountenanced by the trial courts. However, that matter is not at present deemed important in this [199] •connection. We understand the surveyor, Dryer, to express his expert opinion on the matter after a survey made by him. He did not say his survey was not reliable. He merely said he was not certain that the corner inquired about was located by him at the point the government had placed it. This answer to the cross-examination consists with the opinion he had theretofore expressed in that regard. A cautious witness may well hesitate to testify to the certainty of a circumstance and yet give his best, his informed, judgment that the circumstance is as he affirms. There is no merit in this assignment. (4, 5) Charges 2, 6, and 7 were not erroneously refused to the defendant. They possessed misleading tendencies when referred, as must be done, to the evidence before the jury. Adverse possession of land under color of title is not alone predicable of residence thereon or of cultivation thereof. — Perry v. Lawson, 112 Ala. 480, 484, 20 South. 611. So the continuity of adverse possession, for the period requisite to invest title, is not alone and necessarily dependent upon the tAvo kinds of possible actual uses to which Ave have alluded. All three of these requested instructions quite reasonably appear to inculcate the notion that the essential continuity of possession may be broken by a suspension of the uses, or one of them, mentioned above, without regard to any other indicia of possession of Avhich these lands Avere susceptible. It might have been concluded by the jury, from these instructions, that the mere failure of the plaintiff to have some one constantly residing on the land, or to have it cultivated during the crop seasons without intermission, Avas all sufficient to- shoAV an abandonment of the possession by the plaintiff, and hence a want of the essential continuity in his possession. [200] (6) There was no prejudicial error wrought in giving charge 8, requested by the plaintiff. By its terms the amount of damages was restricted to what the jury thought was reasonable and right under the evidence. The charge did not purport to define rules by which the amount should he ascertained under the evidence. If the defendant conceived that the charge was deficient in' not so defining the method of ascertainment under the evidence, an explanatory instruction should have been requested in its behalf. (7) Charges 1, 3, 4, and 5 were refused to the defendant without error. They would have invaded the province of the jury. (8) Charge 9, given at the instance of the plaintiff, accorded with the ruling of this court in this case on the last appeal. — Pearce v. Aldrich Min. Co., 184 Ala. 610, 64 South. 321-323. The amount of the damages awarded finds support in the evidence. No error appearing, the judgment must be affirmed. Affirmed. Anderson, C. J., and Sayre and de Graffenried, JJ., concur.