Opinion
5 Div. 807.
January 18, 1923.
Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.
Thos. A. Curry, of Clanton, for appellant.
The certified copy of the deed from Jones to the plaintiff was inadmissible, in the absence of proof that the original had been lost or destroyed. Code 1907, § 3374; 202 Ala. 433, 80 So. 817. It was error to exclude the evidence of the witness Parrish as to the possession of the land. 140 Ala. 283, 37 So. 382, 103 Am. St. Rep. 35; 97 Ala. 579, 12 So. 75; 111 Ala. 596, 20 So. 443. The court erred in giving the affirmative charge and in instructing the jury to find for plaintiff. 144 Ala. 343, 39 So. 74; 141 Ala. 258, 37 So. 395; 155 Ala. 270, 46 So. 753; 63 Ala. 432; 150 Ala. 445, 43 So. 856.
James S. Edson, of Montgomery, for appellee.
The lands in question vested in the widow and minor children immediately on the death of William F. Connell. Code 1907, § 2069. To support her claim, defendant's adverse possession must have been continuous. 206 Ala. 156; 141 Ala. 451, 37 So. 799, 109 Am. St. Rep. 45.
Statutory ejectment instituted by appellee against appellant. In addition to the general affirmative charge with hypothesis, given at plaintiff's instance, the court, through supplementary statements to the jury, in effect directed a verdict for plaintiff in so far as adverse possession was concerned. Under the tendencies of phases of the evidence designed to show defendant's adverse possession, under color of title, of the quarter section in question for 10 years — an issue of fact for the jury to determine — this action of the court was error. Shipp v. Shelton, 193 Ala. 658, 69 So. 102, among others.
The amended complaint sought the recovery of the land described, the mineral right therein having been severed through conveyance to the Klenol Company in May, 1911. The possession of the mineral interest in situ, where there has been severance in the title of the mineral estate from the surface estate, is not the possession of the surface; and likewise, where such severance in title has been effected, possession of the surface is not possession of the mineral estate. Hooper v. Bankhead, 171 Ala. 626, 54 So. 549; Franklin v. Gwin, 203 Ala. 673, 85 So. 7; Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403; Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322, 327, 68 So. 880, 15 A.L.R. 23. The failure on the part of the trial court to observe and apply the doctrine stated led the court to the erroneous assumption that mining operations only, and for a short period of time, after the conveyance to the Klenol Company, effected to wholly neutralize the effect of defendant's evidence tending to show her adverse possession of the land described in the amended complaint, viz. the surface estate in the area defined in the pleading.
The certified transcript of the recorded deed from G. W. N. Jones to the plaintiff was inadmissible on seasonable, apt objection; the loss or destruction of the original not being shown. Acree v. Shaw, 202 Ala. 433, 434, 80 So. 817; Code, § 3374. But the objections stated to the admission of the transcript were general in character, and did not take the sound point belatedly made.
The defendant was entitled to elicit from her witnesses, if they were qualified to so affirm the fact, that she was in possession of the land described in the complaint, as well as that she claimed the same during the period of which she sought to predicate her contention of right established through adverse possession. Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am. St. Rep. 35; Steed v. Knowles, 97 Ala. 573, 12 So. 75; Goodson v. Brothers, 111 Ala. 589, 20 So. 443; 2 C. J. p. 269 et seq.
Under the amended complaint, no prejudicial error resulted from the admission of the already mentioned deed to the Klenol Company.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.