sion of part of this land under color of title of the whole was a constructive possession of the entire 400 acres. Jones v. Gaddis, 67 Miss. 769, 7 South. 489; Mitchell v. Bond, 84 Miss. 72, 36 South. 148. In this case, however, the testimony abundantly shows that William Devereaux was actually in the possession of the entire 400 acres of land. In fact, his ownership and possession of this land was of the highest character of which the land was then capable. The note from Jacob Elmer to John Hudson was an admission by Elmer that he had parted with his

title to the land and sold it to William Dev

where the party against whom the adverse
claim is asserted has actual knowledge of such
adverse possession. A possession which is ad-
verse and actually known to the true owner is
equivalent to a possession which is open and
notorious and adverse. Dausch v. Crane, 109
Conn. 94; Alexander v. Polk, 39 Miss. 737;
Mo. 336 (19 S. W. 61); Clark v. Gilbert, 39
Ford v. Wilson [35 Miss. 490, 72 Am. Dec.
137], supra. The doctrine is concisely stated
in this form: 'If the owner have actual knowl-
edge that the possession is adverse to his title,
the occupancy need not be open, visible, and no-
torious. Notoriety is important only where the
adverse character of the possession is to be
brought home to the owner by a presumption.'
See 1 Cyc. p. 999, par. c, and cases cited."
Had Jacob Elmer during his lifetime at-
tempted to assert title to this land, he would
have been estopped to do so because of the
note he had written to John Hudson, and
those claiming under him in this case occu-
py no better attitude than he would if living
and asserting this claim. The case of Nix-
on's Heirs v. Carco's Heirs, 28 Miss. 414, in
some respects is similar to this case. We

ereaux. After that time there is no claim
whatever by Elmer in any way that he own-
ed the land. Jacob Elmer lived 28 years aft-
er William Devereaux took actual possession
of the land, and during all that period of
time in no way did he make any claim to the
land. The land was assessed to, and the
taxes paid by, Devereaux and his direct and
remote grantees. It is clear that Jacob El-quote from page 430 of 28 Miss.:
mer in his will meant to devise all of the
real property of which he was seized, and
the fact that this property is not referred to
is a strong circumstance going to show that
he had parted with his title thereto. From
the note written by Jacob Elmer to John
Hudson it is perfectly clear that Elmer had
actual knowledge of the possession of Wil-
liam Devereaux under color of title during
28 years of his life. Under the facts in this
case, the language used in the opinion of the
court in the case of McCaughn v. Young, 85
Miss. 293, 37 South. 839, is applicable:

"Discussing the question of the payment of taxes as evidence of adverse possession, the Supreme Court of the United States says: Payment of taxes, as described in the above statement of facts, is very important and strong evidence of a claim of title; and the failure of the plaintiff's predecessors to make any claim to the lot, or to pay the taxes themselves, is some evidence of an abandonment of any right in or claim to the property. In Ewing v. Burnet, 36 U. S. (11 Pet.) 41 (9 L. Ed. 624), it was held by this court that the payment of taxes on land for 24 successive years by the party in possession was powerful evidence of the claim of right to the whole lot upon which the taxes were paid. The same principle is held in Fletcher v. Fuller, 120 U. S. 534, 552 (7 Sup. Ct. 667, 676, 30 L. Ed. 759, 764). It is some evidence that the possession was under a claim of right and was adverse.' Holtzman v. Douglas [168 U. S. 278], 18 Sup. Ct. 65 (42 L. Ed. 466)."

In this case it is to be borne in mind that there was an actual disseisin of Jacob Elmer in 1866 of which he had actual knowledge, or that he had actually sold the land to William Devereaux and rightfully placed him in possession of same. In discussing possession under similar facts, we again quote from McCaughn v. Young, supra:

"The underlying principle on which is founded the rule requiring that possession must be open and notorious before it can be considered adverse to the real owner is that such character of possession is presumptive notice to the true owner of such possession and adverse claim. But the rule does not apply in cases

"When Nixon was about to purchase the property, what were the circumstances connected with it? He saw that it had been in the peaceable possession of those under whom he was to derive title for upwards of 20 years, by virtue of an instrument of writing executed by Carco, which, though not a formal deed of conveyance, was yet evidence that he had sold the land, and was a sufficient writing to conclude him from setting up title against it. Carco had been dead nearly 20 years, and his heirs had set up no claim whatever to the property, though living near it, and aware that Krohn had purchased it and expended a large sum of money in improving it; and some of the heirs had actually acquiesced in his title. Under such circumstances, was Nixon not justified in purchasing the property, and will the heirs of Carco be permitted to deprive him of the property by force of technical imperfections in his title? It cannot be a matter of doubt what the rule of equity is in such a case. It is clearly laid down by Chancellor Kent in Wendell v. Van Rensselaer, 1 Johns. Ch. [N. Y.] 353, to be, 'that if one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under known his claim, he shall not afterwards be an erroneous opinion of title, without making permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by the equitable estoppel.' And this doctrine has been sanctioned by this court in [Dickson v. Green], 24 Miss. 618, and by universal adoption. it is applied with more stringency when the acquiescence has been so long as to be fortified by the legal presumptions arising from great lapse of time. In Grand Gulf Railroad, etc., v. Bryan, 8 Smedes & M. 279, this court says: The authorities abundantly prove that, in favor of long possession, almost every variety of written evidence of title will be presumed. The defective links in the chain of title will be supplied by presumption, and the title declared perfect, when the possession has continued for a great length of time without interruption.' S. P. in Stephenson's Heirs v. McCreary, 12 Id. 47 [51 Am. Dec. 102] et seq., and authorities there cited."

And

[2] From all of the circumstances in this case, the presumption that there was a deed from Jacob Elmer to William Devereaux was raised, and the chancellor as a matter of law should have so found. Caruth v. Gil

lespie et al., 109 Miss. 679, 68 South. 927; | their arrival in Texas, executed a deed of Hewling v. Blake et al., 110 Miss. 225, 70 South. 247; Nixon's Heirs v. Carco's Heirs, supra.

[3] Adverse possession under color of title for a period of over 10 years was also established. The decree of the lower court is reversed, property purchased at the foreclosure sale and the bill dismissed.

Appeal from Circuit Court, Bolivar Coun- ington v. Frank, 77 Miss. 606, 27 South. 1000, ty; W. A. Alcorn, Jr., Judge..

Laws 1908, c. 194, § 1, abrogating the fellow- | appears that whenever there were only a few servant doctrine as to employés of railroads; logs lying at the landing at which a car was for he was himself engaged in and about the being loaded, and the log wagons arrived at operation of the logging railway, and, although the employment of the fellow servant may have the landing with their loads, it was the cusbeen in another department of labor, yet it tom of the appellee to "tong" the logs direct was one of the duties incidental to the opera- from the wagon and lift them from the wagtion of the railroad, so that the fellow-servant's negligence was one of the risks and perils in- on directly onto the cars instead of dumping cident to the tonger's employment. the logs from the wagons to the ground and then loading them on the cars. The landing at the point where appellant was injured was a piece of ground that slanted toward the railroad track, which necessarily caused a wagon to incline when standing unloading logs at this landing.

2. MASTER AND SERVANT 287(4)-INJURIES TO SERVANTS NEGLIGENCE OF FELLOW SERVANTS-QUESTION FOR JURY.

Where a tonger engaged in loading a logging car was injured by a log permitted by a fellow servant to roll from his wagon, the question of the latter servant's negligence was for the jury.

Appeal from Circuit Court, Greene County; R. W. Heidelberg, Judge.

Action by Jesse Ellis against the Bear Creek Mill Company. Judgment for defendant, and plaintiff appeals. Reversed and re

The appellant, Ellis, was an employé of the appellee corporation and was known as a "tonger"; his duties required him under his employment to fasten the tongs, which were attached to the wire cables on the loading machine, to the logs in order that the logs could be then hoisted by means of the derrick and the steam loader onto the log Stevens & Cook, of Hattiesburg, and E. W. cars of the appellee. At the time of the inBreland, of Leaksville, for appellant. Wat-jury appellant and the others of the loading kins & Watkins, of Jackson, for appellee.

manded.

HOLDEN, J. Appellant, Jesse Ellis, sued the appellee, Bear Creek Mill Company, a corporation operating a logging railroad by steam agency, for personal injuries received while assisting in the loading of one of appellee's logging cars. After the plaintiff below had introduced all of his evidence the court granted a peremptory instruction to find for the defendant, from which action this appeal is prosecuted here. The facts of the case presented by the plaintiff in the court below are substantially as follows:

crew were engaged in loading one of the cars of the logging train which had been placed, as a part of the train, alongside the landing referred to, and which was drawn by a steam engine, when and where one Hub Box, an employé of the appellee, who was driving a team regularly for appellee, drove his ox team and loaded log wagon up to and alongside the landing; the wagon was loaded with logs and there was one log lying upon the top of the load which was held onto the wagon by means of the loading chain which was fastened about the logs and to the wagon on the driver's side. The bed of the wagAppellee, Bear Creek Mill Company, ownon was loaded with three logs, which were ed and operated a sawmill near the town of held on the wagon by short bumpers. Two Leaksville, and in connection therewith own- logs were then on top of the three logs, and ed and operated a logging railway over one log on top of the two logs, making the which timber was hauled to its mill. Cars logs fit rather in a pyramid shape, and and engines propelled by steam were operat-around this was fastened the chains to hold ed over this logging railway; the logging cars were loaded by means of a steam loader commonly used in loading sawed logs. The loader was connected with a derrick and suspended wire cables, at the end of which were attached steel tongs that were used to grip the logs and raise them from the ground, or from a wagon alongside the track, and place them upon the car; steam power being used for the purpose. The appellee used wagons drawn by oxen to bring the logs from the woods to its tracks, there to be loaded by means of the steam loader onto the cars and then transported over appellee's logging railway to the sawmill plant or to some other point. The appellee had established alongside its tracks certain landings at which logs would be unloaded ordinarily from the wagons onto the ground, and that afterwards, when the car would be placed at the landing, the logs would be loaded onto the car by means of the steam loader.

the logs securely while being hauled from the woods to the track. Appellant at the time was tonging a log from the landing under the direction of a Mr. Mizzel, an engineer of appellee, and as he fastened the tong to the log and gave the signal to the engineer while facing the loader, Box unfastened or unloosed the chains which held the top log on the wagon thereby releasing the log and permitting it to roll off of the wagon. Appellant, with his back to the wagon and ignorant of what was going on behind him and before he knew it, was struck in the back by the falling log, from which he suffered serious bodily injury.

The appellee contends that the peremptory instruction given for the defendant below was warranted upon the facts of the case for two reasons: First, because appellant's injury was not caused by a fellow servant engaged at the time in the hazardous emIt ployment of operating the cars of appellee

railroad; second, that the injury was not caused by the negligence of Box, the employé of appellee and fellow servant of ap pellant, Ellis.

We here set out section 1, c. 194, Laws of 1908:

"Every employé of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gaso per-line or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others, or their employés, as are allowed by law to other persons not employed."

[1] Box was undoubtedly an employé of appellee and a fellow servant of appellant Ellis. At the time of the injury he was forming the duties of his employment, which were to haul logs upon appellee's wagons from the woods to the railway track of appellee, where they would be loaded upon the cars to be transported to some other point In passing upon this question, we do not on the railroad. His duties required him to think it necessary for us to go any further at properly load and haul the logs to certain this time than to say that under chapter 194, established landings near and alongside the Acts of 1908, as construed by this court in track and there unload them on the ground, Hunter v. Ingram-Day Lumber Co., 110 Miss. to be afterwards loaded in cars by means 744, 70 South. 901, and where a similar statof steam derrick and tongs, or where freute was construed in Railroad Co. v. Pontius, quently the logs would be tonged and lifted 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675, directly from the wagon to the car, which the appellant, Ellis, was injured while enwas done in this instance. Box had six logs on his wagon to be loaded upon the car which was being loaded by appellant. Appellant was engaged about his duties loading the car under the direction of a superior officer, and while he was facing the loader with his back to the wagon Box placed the loaded wagon alongside the landing by the car that was being loaded by appellant, who was standing on the ground near the wagon and the car. After the loaded wagon stopped Box unloosed the chains which were fastened around the logs to hold them securely on the wagon, so that the logs could be loaded upon the car either by lifting them directly from the wagon to the car with the steam loader, or if no car had been there waiting then the logs would be unloaded onto the landing alongside the track to be subsequently loaded upon the cars. When Box unloosed the chains which were fastened around the logs to hold them securely upon the wagon, the top log rolled off to the ground and struck appellant, Ellis, in the back and severely injured him.

gaged in and about the operation of the appellee's logging railway operated by the dangerous agency of steam. The law is well settled that the loading of logs upon one of appellee's cars to be transported to some other point was such employment as to make the appellant engaged in the operation of the road. While the appellant was thus engaged in the operation of the railroad he was injured by the negligence of Box, a fellow servant, who may have been engaged about a different piece of work or in another department of labor from that of the appellant, yet Box was performing one of the duties incidental to the operation of the railroad; and while this fellow servant Box may not have been assisting directly in the loading of the cars, and for that reason was not engaged in operating the railroad, still his employment was closely connected with that of appellant, and his negligence was one of the risks and perils incident to the employment of the appellant, Ellis, in loading the logs upon the appellee's cars. For that reason we think there can be We understand the contention of counsel no question about the case of appellant comfor appellee is that, while Box was a fellowing within the Act of 1908, c. 194. servant of the appellant, Ellis, and was an employé of a corporation operating a railroad by the dangerous agency of steam, within the meaning of chapter 194, Acts of 1908, still the appellant, Ellis, cannot recover in this case because his injury was not due to the negligence of a fellow servant engaged at the time in the hazardous employment of operating the cars of the appellee logging railroad company. In other words, the contention of counsel for appellee is that Box was a mere log hauler, whose business was simply to haul logs from the woods to the tracks of appellee and there unload them, and then his duty was at an end; that therefore in doing this work he was at no time engaged directly or indirectly in the operation of the cars of the appellee railroad company, and appellant, Ellis, cannot recover for the negligence of a fellow servant who was not con

There is no occasion for us to decide the question now as to whether or not the fellow servant Box was actually engaged in loading the logging car at the time of the injury. Nor do we decide whether under the statute appellant could recover in a case where he was injured by the negligence of a fellow servant regardless of the character of employment of the fellow servant. We may point out, however, that when Box placed the wagonload of logs at the landing so that they might be loaded upon the car, and when he unloosed the chains which fastened the logs together so that the loading of the logs onto the car could be accomplished, either directly from the wagon or from the ground, there arises from the facts a serious question as to whether or not Box was actually employed at the time in loading the car, and thus engaged in the hazardous employment of operating the railroad

or whether that fact could make any differ-ers appraised the same and the damage reence if appellant alone was in the designated sulting to appellee from the taking thereof class of railroad employés and was injured as provided by section 1, c. 270, Laws of by a fellow servant, is a question equally as 1914 (section 4280 of Hemingway's Code), serious. and reported that the taking of the land had resulted in no damage to appellee. Whereupon appellee interposed an objection to the appraisement, and on the hearing thereof by the chancellor an order was entered directing the commissioner to award appellee the sum of $1,636.70 as damages for the taking of its land, and from that order this appeal is taken.

[2] On the second contention made by the appellee we cannot see much room for discussion of the point. We are clearly of the opinion that under the facts shown by the plaintiff, that is, that Box drove the wagon up to the landing and unfastened the chains holding the logs, knowing, or should have known, that the appellant and the other employés were near the wagon and the car, and also knowing the slanting condition of the ground and the condition of the logs on the wagon, a question of fact is presented for the determination of the jury as to whether or not Box was negligent, in whether he knew, or should have known, that when he unloosed the chain the top log would roll off onto the appellant and injure him.

The lower court erred in granting the peremptory instruction to the defendant, and for this error the judgment of the lower court will be reversed and the case remanded. Reversed and remanded.

(118 Miss. 493)

It is not and could not be successfully contended by appellant that it is given the right to appeal from the order complained of by any section of chapter 196, Laws of 1912, or chapter 270, Laws of 1914, under which this drainage district was created. Its contention is that the order appealed from is a final decree of a chancery court, within the meaning of section 33, Code of 1906 (section 8 of Hemingway's Code); but we are of the opinion that the orders made in the process of forming a drainage district are not decrees within the meaning of the statute referred to, and consequently that appeals therefrom do not lie, in the absence of a statute providing therefor. Motion sustained.

(117 Miss. 760)

BOGUE HASTY DRAINAGE DIST. v. NAPANEE PLANTATION CO. (No. 20350.) (Supreme Court of Mississippi, Division A. HOME INS. CO. v. TATE MERCANTILE

May 27, 1918.)

APPEAL AND_ERROR 76(1)—DRAINS 57 -"FINAL DECREE.

Laws 1912, c. 196, and Laws 1914, c. 270, relating to creation of drainage districts, do not give a drainage district a right to appeal from an order of a chancellor, directing payment of damages for land appropriated, nor is such an order a "final decree," within the meaning of Code 1906, § 33 (Hemingway's Code, § 8), from which an appeal will lie.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

Appeal from Chancery Court, Washington County; E. N. Thomas, Chancellor.

Proceeding by the Bogue Hasty Drainage District against the Napanee Plantation Company. From an order of the chancellor awarding the latter damages, the former appealed. On motion by the Plantation Company to docket and dismiss. Motion sustained.

See, also, 74 South. 334.

Percy Bell, of Greenville, and Thos. S. Owen, of Cleveland, for appellant. J. M. Cashin, of Greenville, for appellee.

SMITH, C. J. This is a motion to docket and dismiss, one of the grounds of which is that no appeal lies from the order of the chancellor complained of. Appellant having appropriated for drainage purposes land owned by appellee, the drainage commission

CO. (No. 20215.)

(Supreme Court of Mississippi, Division A. May 27, 1918.)

1. JUDGMENT ~589(2) — FORMER ADJUDICA

TION-CONCLUSIVENESS.

A judgment on the merits between the same parties for the same cause of action is conclusive between them, although one suit may be on contract and the other in tort; the test being whether plaintiff is trying to recover in separate suits for damages growing out of one cause of action.

2. JUDGMENT 589(2) — FORMER ADJUDICA

-

TION-CONCLUSIVENESS.

Where plaintiff brought action to recover a balance under a fire insurance policy, and in another suit attempted to recover damages in tort for the insurance company's delay in making payment, all the damages flowed from the breach of contract, and an adjudication in one suit barred the other.

3. ESTOPPEL 68(1) - PLEA OF RES JUDICATA-DEMurrer.

Where plaintiff sued in the same action for an unpaid balance under fire insurance policy, and for damages for delayed payment thereon, and defendant demurred to the declaration, whereupon plaintiff confessed error, and sued and recovered for the unpaid balance in a separate action, defendant was not estopped from pleading res adjudicata in the suit, tried subsequently upon amended petition, asking damages for delayed payment only. 4. ACTION 53(1)-SPLITTING Cause of AcTION IN CONTRACT AND TORT.

Where a plaintiff has a cause of action for damages from breach of contract, which cause of action at the same time constitutes a tort, the plaintiff must elect either to sue in contract