Opinion
8 Div. 556.
April 5, 1923. Rehearing Denied May 10, 1923.
Appeal from Morgan County Court; Wm. T. Lowe, Judge.
G. O. Chenault, of Albany, for appellant.
Possession will support an action of trespass without proof of title. L. N. R. Co. v. Higginbotham, 153 Ala. 335, 44 So. 872; 28 A. E. Ency. Law (2d Ed.) 673; Morris v. Robinson, 80 Ala. 291; Lankford v. Green, 62 Ala. 315; Duncan v. Potts, 5 Stew. P. 82, 24 Am. Dec. 766; L. N. R. Co. v. Hall, 131 Ala. 165, 32 So. 603.
Sample Kilpatrick, of Hartsells, for appellee.
Constructive possession can have no force or effect as against actual possession. Defendant was entitled to the affirmative charge. Watters v. Ezell, 188 Ala. 385, 66 So. 443; Zimmerman v. Dunn, 163 Ala. 272, 50 So. 906; Lee v. Raiford, 171 Ala. 124, 54 So. 543.
The plaintiff introduced a deed to the subdivision to which he claims that the strip of land belongs; and, while he claims to have gone in possession of the land when he bought it, he showed no actual possession to the strip in question prior to placing posts thereupon and stringing a wire over same shortly before the suit was brought, and the undisputed evidence shows that the defendant was then in actual possession. Therefore the plaintiff not having shown actual possession was put to constructive possession, which goes with the legal title in the absence of actual possession in another, and the plaintiff, not having shown actual possession to the strip in question, was put to proof of the legal title and constructive possession thereunder, and that part of the oral charge objected to by the plaintiff was not error to his prejudice under the facts in the case.
The plaintiff was, of course, not entitled to the general charge as it was disputed as to whether or not the strip was within his deed or if it was whether or not it was excluded by an agreement as to the corner and adverse possession thereunder. Moreover, the great weight, if not all the evidence, showed actual possession in the defendant and which would exclude a constructive possession in plaintiff even if his deed included the strip in question.
There was no error in refusing charge 2 requested by the plaintiff. In the first place, it excludes the idea of an actual possession to the land, if uncleared and uninclosed when the defendant may have committed acts sufficient to show actual possession. Again it assumes that the strip in dispute was a part of the 20 acres in the plaintiff's deed from Sparkman, when such fact was controverted by the evidence of Sparkman and Sandlin.
The other questions involved, both as to evidence and charges, go to the measure of damages rather than the plaintiff's right to recover, and, since the jury found for the defendant, errors in this respect, if any there were, were without injury to the plaintiff. Wilson Bros. v. M. O. R. Co., 208 Ala. 581, 94 So. 721.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.