
    Easterwood v. Lay.
    
      Use and Occupation.
    
    (Decided June 19, 1913.
    62 South. 787.)
    
      Use and Occupation; Tenant’s Rights; Evidence. — Where it appeared that when the tenant rented the land the preceding lessee pointed out the boundary as then understood by the parties, that he rented the track as agreed upon, and that even after his lessor discovered the mistake, it did not acknowledge plaintiff’s claim to the land not occupied by him, plaintiff was not entitled to recover in an action for use and occupation of land which defendant had conveyed to the lessor of plaintiff, but which plaintiff had not been in possession of owing to a misunderstanding of the boundary line.
    Appeal from Gadsden City Court.
    Heard before Hon. John H. Hisque.
    Action by W. E. Easterwood against W. P. Lay for use and occupation. Judgment for defendant and plaintiff appeals.
    Affirmed.
    George D. Motley, for appellant.
    Hostility to tbe title of tbe true owners is an essential element of adverse possession, and a possession cannot be adverse wbicb in any contingency is intended to be in subordb nation to tbe true title. — Ivey v. Beddingfield, 107 Ala. 616; Yancey v. 8. & W. R. R. Go., 101 Ala. 284; Williams v. Higgins, 69 Ala. 517; Chancellor v. Teal, 141 Ala. 634; Gulf Red G. Go. v. Crenshaw, 148 Ala. 348. Tbe facts supported tbe action for use and occupation.- — Gatterlin v. Spinks, 16 Ala. 467; Price v. Pickett, 21 Ala. 741; Branch Bank v. Fry, 23 Ala. 770; Weaver v. Jones, 24 Ala. 420; Rushton v. Davis, 127 Ala. 279.
    Hood & Murpi-irbe, for appellee.
    This action could not be maintained at tbe common law, and tbe statute prescribes tbe only case in which tbe action avüI lie.— Lankford v. Green, 52 Ala. 103; Fielder v. Childs, 73 Ala. 567; Weaver v. Jones, 24 Ala. 423. The language of the statute as amended is “Avhen the defendant had gone into possession unlawfully,” and the facts do not make such a case.
   SAYRE, J.

— Appellant sued appellee for the use and occupation of something like 20 acres of land. Plaintiff added a count in AAdiick he alleged that defendant had received rents from lands Avhich belonged to plaintiff and claimed a recovery of those rents as the equitable oAvner. The case Avas tried by the court without a jury.

Apart from any other consideration, Ave think the judgment must be affirmed on the ground that the trial court may Avell have found that plaintiff had no interest in the land out of which the controversy has arisen. No doubt the court found the facts as folloAvs, for there was scarcely any dispute about them: Defendant had owned in common with one Weller a considerably larger tract, which included, as afterAvards appeared, the tract in question. Defendant OAvned in severalty land immediately below. Above the true line betAveen the land defendant owned in common with Weller and that he OAvned in severalty there ran a “fence row” along which bushes and trees had groAvn up. Defendant supposed this “fence row” to be the true line between the two tracts, but in fact a part of the Weller tract (that part in question) lay below it. Defendant had been renting the land above the “fence row” to one Clough; that below to other tenants. In 1904 defendant sold his interest in the Weller tract to the Queen City Bank but continued, nevertheless, to hold and claim all the land below the “fence toav.” The bank, knowing the land by its deed only, continued to rent to Clough. In 1907 plaintiff took a lease from the bank but the writing had been lost and it did not appear how this leasehold was described in the lease. Plaintiff testified that the land in dispute was a part of the farm he rented from the bank; but on cross-examination he said that the rent contract specified “just only that he leased the bank property.” The bank’s agent testified that plaintiff was to get, all the land the bank got from defendant. But he also said that he knew nothing about the disputed line, and that he was renting to plaintiff the same land he had rented to Clough. He said further, “I rented to him what I understood Clough rented,” though he said nothing to plaintiff in reference to that. He also testified that his best recollection wa's that Clough rented the land the year before and.showed plaintiff the lines of the land he was renting. This defendant did not deny. In the early part of the fourth year of plaintiff’s tenancy question arose between defendant and the bank, or probably its successor in title, as to the location of the line between them, and a survey was had which developed the fact that the “fence row” was not the true line. Whereupon defendant surrendered the land in question to the bank’s agent and “paid him the rent.” For three years, at least, plaintiff appears to have accepted the land above the “fence row’ as that to which he was entitled under his lease. During all this time defendant, by his tenants, was in possession and cultivating the land below the “fence row.” It seems reasonably clear that plaintiff never at any time supposed he had less land than he was entitled to have under his lease until he became apprised of the controversy between the defendant and the bank, nor did the bank at any time before or since the settlement of this dispute with defendant give any recognition of plaintiff’s claim to more. On these facts we think that plaintiff, so far' from being entitled ex eqno et bono or otherwise to the rents collected by defendant, got all he bargained for, and that the judgment ought to be affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Somerville, JJ., concur.  