Dothard v. Denson

75 Ala. 482

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

SOMERVILLE, J.

Adverse possession of land, without color of title, is limited to actual occupancy, and hence, the rule does not apply, in such cases, that the possession of part of a tract will be regarded as constructive possession of the whole. Farley v. Smith, 39 Ala. 38; Bell v. Denson, 56 Ala. 444. The latter principle applies only where the party in possession holds under some written instrument, or color of title, describing the boundaries of the land claimed.—Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232; 2 Smith’s Lead. Cases, 565.

The court properly excluded evidence of plaintiff’s possession of parts of the tract sued for, other than of those parts claimed by the defendants, prior to the time when the plaintiff held under color of title.

It is true that the claim of a mere easement, or other right in land less than the entire fee, does not confer any adverse right to the fee simple, and that to have this effect, under the statute of limitations, “ the claim must be of the entire title, exclusive of the title of any other person.” — N. O. & S. R. R. Co. v. Jones, 68 Ala. 48, 55. If the defendant, Denson, had purchased a mere miner’s right to dig gold, and had confined his claim of title only to this right, the foregoing principle would find application to the present case. The second charge requested by the plaintiff was properly refused, however, because it excluded from the consideration of the jury the fact that the claim of the defendant, Denson, was to the entire title, and was not confined to the mere right of mining on the land in controversy.

The other rulings of the court we need not discuss. They are settled to be correct in the opinions heretofore rendered in this cause on former appeals.—Dothard v. Denson, 72 Ala. 541; Bell v. Denson, 56 Ala. 444.

Judgment affirmed.