1. That the legal title to the lands in dispute had been in the plaintiffs in this action is not denied. The plaintiffs made out a prima facie case, and the defense depends upon establishing the plea of the statute of limitations of ten years, interposed by defendants .
The law as applicable to the facts of the case, and by which it is easily determinable, is so well settled as to need no further discussion. For the purposes in hand, we need to do no more than to restate some' of our oft repeated holdings on the subject. Recently we stated, as a summation of the authorities, that a claim of title founded on ten years adverse possession, to have the effect to bar the title of the legal owner, must have been hostile or adverse, actual, visible, notorious and continuous, under a claim or color of title; that no right can spring from mere claim or color of title, unaccompanied by actual possession, and that, in the absence of such an adverse possession as falls within this definition, there is no room for the assertion of title by adverse possession, and the question of superior right of possession between, the parties, becomes, at law, one of superior legal title. — Parks v. Barnett, ante, p. 438; Bernstein v. Humes, 71 Ala. 260; Dothard v. Denson, 75 Ala. 482; Hughes v. Anderson, 79 Ala. 209 ; Alexander v. Savage, 90 Ala. 385 ; Murray v. Hoyle, 97 Ala. 588.
It must be shown — and the burden is on him who asserts a claim adverse and hostile to the legal title— that the owner knew that the adverse holder claimed in his own right, or it must be so open and notorious as to raise the presumption of notice. — Ponder v. Cheeves, ante, p. 307 ; Normant v. Eureka Co., 98 Ala. 181; Lucy v. Tenn. & C.R. R. Co., 92 Ala. 250 ; Beard v. Ryan, 78 Ala. 44; Bell v. Denson, 56 Ala. 448 ; Farley v. Smith, 39 Ala. 44 ; Lucas v. Daniels, 34 Ala. 188.
We have carefully reviewed the facts of this case. From these it does not appear, that either one of the purchasers of said land at sheriff’s sale, ever went on *632them, or exercised any act of ownership over them, before the year 1859. The tract was unoccupied woodland. The first act of occupancy, shown by the defendants, was that of the man Simonds, in the year 1855 or 1856. He squatted on a few acres on the corner of it, and built him a small cabin, believing it to be Government land, and did not know any better, until between the last of January or the first of March, he was informed by Joab Bagley, that his cabin was not on the public land, but was over the line about 20 steps. To this time, he had set up no claim or right whatever to the land. Bagley told him he might remain there, as long as he pleased, and Simonds said he held it as Bagley’s tenant. He abandoned the land on the 1st of January, 1869. If it be conceded, that this possession was Bagley’s and was open, hostile, visible and notorious, yet, by Simonds’ own evidence, it fell short of ten years, for the earliest period he fixes for his tenancy under Bagley is the last of January, 1859, and he left the 1st of January, 1869 ; but, if it had covered the whole of 1859, it could not have ripened into a title, because the time elapsing between the 11 January, 1861, and the 21 September, 1865, by ordinance of the State convention of 1865, could not be estimated. From the day Simonds left until 1873, when Autonne took possession — a period of at least ten years — there was no possession or acts of ownership shown by any one. In 1873, Autonne is shown to have taken possession of the cabin built by Simonds, and cultivated some 5 or 6 acres for Mr. DeBardeleben, who was shown to have been the superintendent and the general manager of the Eureka Company. This company did not derive title to its part of the land, until December 31, 1873. Autonne remained 12 or 18 months and left in the summer of 1874. According to this evidence, he could not have moved there in the early part of the summer of.1873, in the interest of the Eureka Company, which 'had no title — though DeBardeleben may have been its superintendent — before December 31, 1873. From the summer of 1874, when Autonne left, until 1876 — a period of about 18 months — no one was in possession and nothing appears to indicate an open or notorious act of ownership. It was abandoned, so far as such appearances went. In 1876, one George Smith moved into the cabin, and remained thereuntil the latter *633part of that year, or the first of the next. For what purpose he went, and what he did while there, is not shown. It was said he moved in by the consent of the cashier or book-keeper of the Eureka Company. No occupancy followed him until 1879 or 1880, when-Griffin moved in, as was said, by the consent of the Eureka Company, and remained three months. After this, it remained unoccupied for over two years, when, from June, 1882 to July, 1884, it was leased to one Brewer by W. S. Mudd. From June, 1884 to March, 1885, it was unoccupied, when a negro by the name of Hale rented it from the Eureka Company, and cultivated the patch around the Simonds house during the year. This was the last occupancy shown, until May, 1890.
We have traced these several acts of possession and occupancy upon which defendants rely to base their title by adverse possession, to show that they were fitful, uncertain and not continuous. There was not a fact in evidence tending to show that these different possessions could be tacked as continuous ; but they were separate, independent, and remote, the one from the other.
One of the defendants’ witnesses, Wade, who had a saw mill not a great way off, testified that in 1879, he endeavored for about six months, by making inquiries, to ascertain who owned these lands, and was unable in that time to ascertain who was the owner. Certainly, the possession and claim of defendants could not have been very open and notorious, such as would imply a knowledge of it on the part of the plaintiffs or others, if such were the case. And again, one coming to investigate the reality and foundation of this alleged hostile, adverse possession, can not well understand why, if it existed, the defendants might not have established it by satisfactory proof. Where are DeBardeleben, Noble, Mount and other officers of the Eureka Company? Not one of them have been examined.
The conclusion is, they knew nothing, and of all men, it seems, they would have known the most. The evidence offered falls far short of establishing any continuous adverse holding by the defendants for ten years, at any time since their purchase of said lands in 1855.
Of the introduction of the record of the chancery suit between these parties, to establish the sheriff’s deed and divest the title out of plaintiffs, we may say no more *634than that, if it was inadmissible, it was error without injury, since the other evidence in the cause is sufficient to support the finding and judgment of the court below.
Affirmed.