plained of will be reversed, the injunction reinstated, and the cause remanded for further proceedings.

(72 W. Va. 545)

CHILTON v. WHITE et al. (Supreme Court of Appeals of West Virginia. May 27, 1913.)

(Syllabus by the Court.)

Error from Circuit Court, Logan County. Action by J. E. Chilton against Anderson White and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Ellison & England, of Logan, and Price, Smith, Spilman & Clay, of Charleston, for plaintiff in error. E. H. Greene and Chafin & Bland, all of Logan, and Campbell, Brown & Davis, of Huntington, for defendants in

error.

1. FORCIBLE ENTRY AND Detainer (§ 6*)—IsWILLIAMS, J. This action of unlawful SUE-TITLE. In an action of unlawful entry and detain-entry and detainer was brought by J. E. er, wherein the relation of landlord and tenant Chilton against Anderson White and others does not exist, and the entry of defendant has in the circuit court of Logan county to rebeen peaceable and under a claim of right, the right to possession depends upon the true owncover possession of 23,6472 acres of land. It ership of the land. was tried by the court in lieu of a jury and resulted in a finding and judgment in favor of defendants, and plaintiff obtained this writ of error.

[Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. § 29-32; Dec. Dig. 6.*]

2. ADVERSE POSSESSION (§ 14*)-CONSTRUC TIVE POSSESSION-EFFECT.

Constructive possession of land does not apply in favor of a claimant thereof against the true owner, unless such claimant has had actual adverse possession of some part of the

controverted land.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 77-81; Dec. Dig. § 14.*] 3. ADVERSE POSSESSION (§ 96*)-"CONSTRUCTIVE POSSESSION"-WHAT CONSTITUTES.

Actual possession of one or more tracts of land, contiguous to another tract in controversy, under a deed for a larger boundary which includes them all, does not give constructive possession of the controverted tract against the true owner thereof. There must be actual possession of some part of the land in controversy before the rule of constructive possession can apply.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 533-536; Dec. Dig. § 96.* For other definitions, see Words and Phrases, vol 2, pp. 1474, 1475.j

4. Judgment (§ 707*)—RES JUDICATA-ESTOP

PEL.

One is not estopped by proceedings in a suit to which he was not a party, when not claiming a right in privity with a party thereto. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.*] 5. TAXATION (§ 517*)-PAYMENT-FORFEITURE

-ADVERSE POSSESSION.

Payment of taxes upon land by either of two adverse claimants thereof, claiming title

from the same person as a common source, prevents a forfeiture thereof in the name of the person under whom they so claim.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 9632; Dec. Dig. § 517.*]

The land is composed of contiguous tracts, and the description in the writ is by exterior boundary lines of the whole. Defendants disclaimed possession and the right to possession of all of the land, except a tract of 842% acres which lies wholly within the larger boundary. The right to the possession of this smaller tract is the real contention. The relation of landlord and tenant does not exist between the parties. If defendants entered unlawfully and by force ousted plaintiff, he would be entitled to recover irrespective of his right to the possession or ownership of the land. The law does not permit

even the true owner of land to assert his rights in such unlawful manner. Moore v. Douglas, 14 W. Va. 708; Duff v. Good, 24 W. Va. 682; Fisher v. Harman, 67 W. Va. 619, 68 S. E. 885; Olinger v. Shepherd, 12 Grat. (Va.) 462. But there is no proof that defendants entered unlawfully. Their entry was peaceable and under a claim of right. The tract in dispute is wild, timbered land, and defendants entered upon it about two years, or a little more, before suit and built small houses on it, and are now occupying them with their families, claiming title by conveyance from Harriet Jarrell and her husband, made in 1907, to her nine children. Defendants are her sons and sons-in-law.

[1] While unlawful entry and detainer is purely a possessory action and may be maintained without regard to title, still title is

6. ADVERSE POSSESSION (§ 80*)-DEEDS-PRO-sometimes involved in the action, as an inciBATIVE EFFECT.

A deed which does not identify the land in controversy, and is not shown to include it, is not evidence of colorable title thereto.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. 80.*]

7. ADVERSE POSSESSION (§ 16*)-WHAT CON

STITUTES-WILD LANDS.

Occasional cutting of timber on, and ranging cattle over, wild and uninclosed land is not such occupation of it as will amount to adverse

possession.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. § 16.*]

dent to the right of possession, for, in the absence of actual possession, constructive possession belongs to him who has the title. "Title draws after it possession of property not in the adverse possession of another." Moore v. Douglas, supra, Olinger v. Shepherd, supra, and Duff v. Good, supra. And constructive possession by the true owner is sufficient to enable him to maintain the action against a wrongdoer or mere trespasser. Plaintiff claims under color of title, derived mediately from Harriet Jarrell in 1888, and

adverse possession thereunder for ten years or more before defendants entered. Defend ants claim by deed direct from said Harriet Jarrell and her husband, made in 1907, and lawful entry thereunder. The issue depends upon the true ownership of the land.

[2, 3] But counsel for plaintiff insist that he and his predecessors have had constructive adverse possession of the Harriet Jarrell tract, and that such constructive possession is all that the law requires to invest him with indefeasible title. It is agreed that on [7] The case was tried upon an agreed October 1, 1891, Alexander McClintock constatement of facts, upon record evidence and veyed the 23,647 acres to P. B. Dobbins, testimony of witnesses; the testimony re- trustee, as one entire tract, describing it by lating chiefly to the matter of actual posses- exterior boundary lines; that the disputed sion by plaintiff and those under whom he tract is situate wholly within those boundclaims of the tract in dispute. A careful ary lines; and that the land has come down examination of that evidence satisfies us that to plaintiff from said Dobbins, trustee, it is not sufficient to prove actual, adverse through several mesne conveyances, as a sinpossession by plaintiff of the 842 acres. gle tract described in the same manner. It is McClintock cut the poplar timber off the also agreed that plaintiff and his predecestract, beginning in 1890 and completing it in sors in title have had actual, adverse pos1892 or 1893. He located his sawmill on the session continuously since 1891 by their tentract and also built shanties on it for the ants of all the land outside of the 8421⁄2 acre, accommodation of his men, but as soon as the or Harriet Jarrell, tract. In view of these work was done his actual occupancy ceased. admitted facts, counsel for plaintiff insist The work occupied less than three years. that he has had adverse possession of the No other person is shown to have lived on Harriet Jarrell tract for the same period on the land. Plaintiff and his predecessors in the principle that, if a person has color of title employed agents to look after it and title to two contiguous tracts of land and is keep off trespassers. These agents lived in in actual possession of one of them, his posthe neighborhood of the tract and were au- session will extend so as to include both thorized to lease it, and did lease it, to tracts. This is a rule generally recognized others who ranged their cattle on it dur- as law. State v. Harman, 57 W. Va. 447, 50 ing the summers for a number of years. But S. E. 828. But the application of it is limthe boundary was not inclosed. There was ited by another well-defined principle, which a fence extending for 100 or 150 yards across is that constructive possession never runs Seng Camp branch, from hill to hill, but against the true owner, unless there has been there is no evidence that cattle did not have actual adverse possession of some part of the free access to the land from all other quar- land in controversy. Here the Harriet Jårters. S. S. Chambers, who was the first man rell tract is the only land claimed by defendemployed by McClintock to look after the ants. If plaintiff had had actual adverse land, testifies that the fence was on the land possession of some part of it, such actual of Mr. White who owned land adjoining the possession would extend, by construction, to controverted tract. There was also about an the whole tract, because the whole is includacre of cleared land in the bottom adjoining ed in his deed. But not having actual adthis fence which had been cleared for a good verse possession of any part of the disputed many years, but when and by whom does land, the rule contended for cannot apply. not appear. Chambers says this cleared Possession on the 23,647 acres, outside of the ground was inclosed and cultivated in corn a 8421⁄2 acres, would not be notice to defendyear or two by Mr. B. W. White, to whom he ants that plaintiff claimed the 8422 acres. had leased the land, or by a sublessee of Mr. Possession must be such as amounts to conWhite, but says that it lay out uninclosed a structive notice of the adverse claim and portion of the time. The proof does not such as would give the true owner a right show that this acre was kept inclosed and to sue for trespass. Such can never be the cultivated for any number of consecutive case unless the trespass is committed upon years. The character of possession which the some part of the disputed boundary. The evidence tends to prove plaintiff and his pred-present case is not distinguishable from that ecessors in title had of the Harriet Jarrell of an ordinary interlock of boundaries betract does not constitute adverse possession. tween junior and senior patentees. The junIt lacks the important elements of notoriety, continuity, and exclusiveness. Core v. Faupel, 24 W. Va. 238. "There can be no adverse possession of wild lands as against the superior title unless such possession is actual, exclusive, visible, and notorious." Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409, 107 Am. St. Rep. 927. Occasional cutting of timber or ranging cattle over uninclosed wild lands is not sufficient. Yokum v. Fickey, 37 W. Va. 762, 17 S. E. 318; Oney v. Clendenin, 28 W.

ior patentee's possession, outside of the interlock, avails nothing. It is never construed to embrace the land within the interlock, as against the senior patentee. The senior patentee's title draws after it the constructive possession of the whole of his grant, what is within as well as what is without the interlock, so long as there is no actual adverse possession within the interlock. But, if the junior grantee has had actual adverse possession of some part of

been partitioned among the heirs, and that M. B. Mullins had become the owner of the interest assigned to Harriet Jarrell, and H. C. Ragland was appointed a special commissioner to make conveyance of the same, when the debts due by the estate should be paid. Pursuant to that decree, said special commissioner, on the 19th of July, 1890, conveyed the Harriet Jarrell interest to M. B. Mullins. Alexander McClintock acquired the M. B. Mullins title to the Harriet Jarrell interest, and, through various mesne conveyances, it has passed to plaintiff.

"Where there is privity of title, one payment of taxes is sufficient and full satisfaction, whether the land is charged as a whole in the name of one, or the various interests separated and charged to the respective owners, dividing the valuation equitably between or among them as provided in section 25, c. 29, Code." State v. Low, 46 W. Va. 451, 33 S. E. 271.

Finding that her title did not become forfeited to the state for nonentry and nonpayment of taxes, and that the deed by Ragland, special commissioner, did not operate to divest her of title, it follows that Harriet Jarrell, her husband joining in the deed, could pass title to her children.

It nowhere appears that Harriet Jarrell appeared either in court or before the commissioner. We have already said she was not a party to the bill. If it could be said that she submitted herself to the jurisdiction of the court by the partition agreement, it would only be for the purpose of carrying out the agreement by having the special commissioner to execute proper deeds to the several parties thereto, in the event they failed or refused to do so themselves. But the decree of July 4, 1887, finds that M. B. Mullins, a stranger to the agreement, had acquired Harriet Jarrell's interest. How did the court so find, and on what evidence? The commissioner did not so report, and there is no evidence shown in the record whereby the court could have found that fact. She is not bound by the recital in the decree, not being a party to the suit, and we know of no rule of law which could be applied to estop her from asserting her title. Judgments and decrees bind only parties and privies. She was not a party, nor is she privy in estate to any one who was a party. The deed executed by Ragland, commissioner, while it may have served as color of title, if plaintiff and his grantors had held adverse possession of the land under it, did not operate to divest Har-puted land was embraced in that deed, plainriet Jarrell of title.

[6] But plaintiff claims the land by another and distinct source of title also. He claims under a deed from Bur Wakeman's executors to Benjamin C. Bowman dated 28th of February, 1891, and a deed from said Bowman and wife to Alexander McClintock. These deeds do not purport to convey the Harriet Jarrell land, nor do they identify it as a part of the land conveyed. The first deed mentioned describes the land as "all and every their right, title, and interest at law and in equity in and to any lands owned or claimed by the said Bur Wakeman at the time of his death or acquired by his said executors and trustees, or either of them, since his death and situate in the counties of Logan and Wyoming in the state of West Virginia, and within a certain patent for 142,000 acres of land more or less, granted February 19, 1796, by the commonwealth of Virginia to De Witt Clinton, which patent to De Witt Clinton is bounded as follows." Then follows the metes and bounds. To prove that the dis

tiff examined, as a witness, Alfred Buskirk, [5] But plaintiff claims that Harriet Jar- a surveyor, who had run some of the lines rell's title is forfeited and that the forfeiture of the De Witt Clinton patent. He says that in his opinion the Harriet Jarrell tract is inures to his benefit. It is agreed that no taxes have been assessed to, or paid by, Har- included within the boundary of the De riet Jarrell or her grantees on the 8422 Witt Clinton grant. His testimony, however, acres since the year 1888. Plaintiff contends shows that he had very little knowledge of that this proves a forfeiture of her title. But the lines of that large survey, and especially the taxes on the whole 23,6472 acres have relative to the lines nearest to the disputed been regularly paid by McClintock and those land. It appears that he did not run from claiming under him since that year. McClin-known corners, but "picked up" a line which tock claimed the land in dispute under deed from M. B. Mullins, who thought he was getting the title of Harriet Jarrell by the deed from Ragland, special commissioner. Both parties to the suit are claiming to own the Harriet Jarrell title, and the payment of taxes thereon by either of them would prevent a forfeiture of the land in her name. The payment of taxes by plaintiff and his predecessors in title on the 23,6472 acres, which includes the Harriet Jarrell tract, has prevented a forefeiture. "The state is not entitled to double tax on same land under the same title." State v. Alien, 65 W. Va. 335,

had been partly run and left off by some other surveyor. One of the lines, he says, he carried through to Guyandotte river, and missed the corner about 5,000 feet. He ran a line from a corner on Guyandotte river toward Spruce river on a branch of which the land in controversy lies, and says the distance of the line which he was running gave out about a mile from the mouth of Spruce river, and that he then turned east on a division line of the survey. He says he was then within 3 or 31⁄2 miles of the land in controversy. His testimony is entirely too vague and uncertain to prove that the De

railroad employé assumes, in the absence of express contract on the subject, no more than the "ordinary risk" of the particular business in which he is employed, and does not assume the risk of unusual dangers, which in the ordinary course of the business as conducted would not naturally occur.

[Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. 88 544-546; Dec. Dig. § 204.*]

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Jarrell claim. The very purpose of colorable | § 2782 et seq.), and Civ. Code 1910, § 3131, a title is to define the extent of one's claim by furnishing evidence of location and boundaries. But there is still a stronger reason why the aforesaid deed is not sufficient as color of title to the land in question, and that is that it purports to convey only such land within the De Witt Clinton grant as was "owned or claimed by the said Bur Wakeman at the time of his death or acquired by his said executors or trustees or either of them since his death." It does not purport to convey all the land within the De Witt Clinton grant, and there is no evidence respecting the quantity or location of the land which the deed did convey. Plaintiff does not connect with the De Witt Clinton grant. It was put in evidence by defendants, however, to show that it was an inclusive grant. Forty thousand acres of prior claims, located within its boundaries, were excluded from its operation, and it does not appear that the Harriet Jarrell claim was not a part of the land thus excluded. It is therefore not evidence of colorable title to the Harriet Jarrell tract of land.

The other deed above mentioned, from Bowman and wife and the Bowman Lumber Company to Alexander McClintock, which bears date 1st of September, 1891, is much more uncertain and indefinite as to location and description of the land conveyed by it than the first one. The only description given in it, of the lands conveyed, is by reference to other deeds by dates and by numbers and pages of the deed books wherein they are recorded. None of the deeds thus referred to are found in the record.

In view of the fact that there has been no actual adverse possession of the land in controversy, there is no limitation upon Mrs. Jarrell's right to assert title to it. Her inaction for so many years is not a matter of which plaintiff can take advantage. The rules and principles governing cases of this character are well defined, and in view of them we are compelled to affirm the judg

ment.

(140 Ga. 333)

CENTRAL OF GEORGIA RY. CO. v. AL-
LEN.

Action by B. T. Allen against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. firmed.

Af

The assignment of error relied on for a reversal is upon the judgment refusing a nonsuit. The plaintiff was an employé, and the defendant was his employer. The action was for damages on account of injuries alleged to have been received through the negligence of the servants of the defendant in operating its trains. The injury occurred at a public crossing, known as "McCall's," where a street crosses defendant's line of railroad tracks on a grade level, between 4 and 5 o'clock in the morning of October 26, 1910, when it was dark. Over this crossing the defendant had three parallel main line tracks, Nos. 1, 2, and 3, about 8 feet apart. There was a parallel side track east of them, and another parallel side track west of them. At the time of the injury the plaintiff was a night watchman at the crossing, and it was his duty "to keep anybody out of the way of trains passing, and to keep trains that were passing over the crossing from hitting people, wagons, and buggies, and when people were coming and a train was coming I would wave the people back; if the people wanted to cross, and there were no trains coming, I would let them cross. My duties there as a watchman were to keep people and trains from coming into collision on that crossing and from hitting each other; and I got $40 per month for that." The plaintiff was on duty at the crossing. Two sections of a circus train were going out of Atlanta. He had let one by, and the other was approaching about 60 feet away. He was standing near the side of main line track No. 3, and noticed

(Supreme Court of Georgia. July 19, 1913.) a pedestrian coming from the opposite side

(Syllabus by the Court.)

1. MASTER AND SERVANT (§§ 286, 288*)-INJURY TO SERVANT-QUESTION FOR JURY. The motion for nonsuit was properly denied.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $8 1001. 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1088; Dec. Dig. §§ 286, 288.*]

(Additional Syllabus by Editorial Staff.) 2. MASTER AND SERVANT (§ 204*)-INJURY TO SERVANT-ORDINARY CARE.

Under the express provisions of Act Aug. 16, 1909 (Acts 1909, p. 160; Civ. Code 1910,

of main line track No. 1, intending to go over the crossing. The pedestrian attempted to cross the railroad track, and the plaintiff waived him down. "He looked like he was going to come anyhow, and I stepped on the first line to start that way" to stop him, "and about that time I was knocked down" by one of the defendant's engines, which, without giving any signal by blowing a whistle or ringing a bell, backed over the crossing of track No. 3 at a high rate of speed without displaying a rear light. The plaintiff's testimony was somewhat confused as to his