Statutory ejectment, instituted by the appellee against the appellant, to recover a certain plat of land in Jacksonville, previous litigation with respect to which may be found stated and reported in Profile Cotton Mills v. Calhoun Water Co.,189 Ala. 181, 66 So. 50; same case, 201 Ala. 483, 78 So. 389. As finally amended, the complaint contained two counts, substantially in the Code form. The plea of "not guilty" being withdrawn, the other matter asserted by the defendant (appellant) in response to the complaint before its last amendment does not appear to have been refiled to the counts as finally amended. The only response shown by the record to have been made by defendant to the complaint as last amended was this:
"B. Comes the defendant, and for answer to the second count of the complaint as last amended disclaims possession of the land therein described, except as to a pumphouse located on the lot described as lot number one hundred thirty (130) according to the old plan of the town of Jacksonville, and occupying about eighty (80) square feet of said lot, as to which defendant claims no title, but admits possession of said pumphouse.
"C. For further answer to the first count, and the second count of the complaint as last amended, defendant disclaims possession of the land therein described, except for a part or parcel thereof consisting of about eighty square feet and occupied by a small pumphouse formerly erected thereon by license of one George P. Ide."
The minute entry, under date June 28, 1919, recites, without other definition, that issue was joined — a recital that, on this record, can be alone referred to the matter asserted in the above-quoted responses, B and C. The nature and whole effect of these responses was a disclaimer, not a denial, of possession of all of the lands described in the complaint except that occupied by the "pumphouse," as to which there was express admission of possession. No objection was taken to the sufficiency of these responses. In the interest of the necessity for definiteness in judicial proceedings of this nature, it may be noted that these responses were faulty in omitting appropriate reference to the possession disclaimed, as well as that admitted, either to the time the action was commenced or otherwise, and also in respect of the descriptions of the part as to which disclaimer was made and the part as to which possession was admitted. Howard v. Martin, 181 Ala. 613,62 So. 99; Callan v. McDaniel, 72 Ala. 96. The allusion in response C to the authority under which the pumphouse was "formerly erected" was but descriptive of a past fact, and not the assertion of an affirmative right or defense.
The joinder in issue, recited as stated before, cannot be accorded the effect of a denial by the plaintiff of the admission by the defendant of defendant's possession of the part of the land occupied by the pumphouse. The joinder in issue on these responses served only to put in issue the disclaimer averred therein. Wade v. Gilmer, 186 Ala. 524,64 So. 611, citing earlier decisions. No question of title vel non to the land described in the complaint was involved. It is a mistake to suppose, as is argued for appellant, that the general rule that ejectment will not lie to recover an easement or servitude (Tenn., etc., Co. v. East Ala. Ry. Co., 75 Ala. 516,523, 51 Am. Rep. 475) has any application to this contest; the action being to recover the land described in the complaint, not an easement therein. The evidence being, in the main, ore tenus, the conclusion attained by the trial court will not be disturbed on appeal, unless plainly opposed to the great weight of the evidence. McCay v. Parks, 201 Ala. 647,79 So. 119, among many others previously decided.
Aside from the fact that a map introduced on the trial is not in this record, the legal evidence presented forbids a conclusion, under the rule just stated, that the trial court erred in its finding of fact upon the disclaimer interposed by the defendant. Wade v. Gilmer, supra. There being no prejudicial error in admitting evidence tending to show the defendant's possession of the land in question, the further consideration of the appeal *Page 245 is restricted to the question of the damages the plaintiff was entitled to recover.
The only damage claimed in the complaint (Code form) was for wrongful detention. This claim included only "mesne profits," which has been regarded as comprehending alone "compensation for use and occupation," and the measure of damages in such circumstances is "the fair rental value of the property during the period of tortious holding." Scott v. Colson, 156 Ala. 450,47 So. 60, citing Warvell on Eject. § 540; Prestwood v. Watson, 111 Ala. 604, 610, 20 So. 600. There is no claim in the complaint for damages recoverable, in proper cases, under the provision of Code, § 3839 (Quinn v. Pratt Coal Co.,177 Ala. 434, 59 So. 49), added to the parent section in the Code of 1907. Whether the facts of this case would have authorized or justified a claim for other damages, within the new provision added to Code, § 3839, is not, of course, considered or decided.
The several questions and answers relating to the damages for detention, the rental value of the property in question, quoted in the assignments of error, were designed to elicit and did elicit testimony appropriate as tending to show the amount of damages recoverable under the rule reproduced above from Scott v. Colson, supra.
No prejudicial error appearing, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.