Arledge v. J. D. Pittman Tractor Co. , 236 Ala. 131 ( 1938 )

The sole question presented by this appeal is whether or not the road supervisor of Chilton county, an office created by Local Act No. 3, approved March 10, 1936, Local Acts 1936, Ex.Sess. pp. 4-8, can, in his official capacity, maintain trover for the conversion, or trespass for the wrongful taking of an article of road machinery, the property of the county, against the wrongdoer?

There is no contention that the statute creating the office by express provision gives him the right to sue, but the contention is that by section 6 of said act, page 6, it is provided: "That said Road Supervisor shall be the custodian of all machinery, equipment, supplies or materials owned by the County under this act and shall be required and liable to account therefor to the Commissioners Court of Chilton County, Alabama, upon written demand by them, and shall render an account therefor at the expiration of his term of office," and therefore he has such property in the chattels in custody as authorizes him to maintain such actions under the provisions of section 5668, of the Code 1923. (Italics supplied.)

Section 5668, Code provides, that: "Mere possession of a chattel, if without title, or wrongfully, will give a right to action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession."

This statute, while awkwardly expressed, is merely declaratory of the common law that possession is evidence of title and proof of possession in the plaintiff will sustain an action as against a wrongdoer without title who injures, converts, or takes chattels from such possession. Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Id.,17 Ala. App. 34, 81 So. 342.

The custody of the road supervisor as such is the county's possession as a matter of law, and such custody does not authorize him to maintain an action for damages for conversion or trespass. The county is the proper party to sue. Lewis v. Lee County, 66 Ala. 480.

The affirmative charge for the defendant was given without error.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.