where, as in this case, the land is unoc- | which is not allowed. Both have constructcupied. Had he been in the actual posses- ive possession, and, under the opinion of sion and occupancy of the land when the the majority, each may maintain replevin; logs were cut, he could have maintained but neither is required to show ownership this action without making any proof what- or title on which constructive possession is ever of a paper title, unless the defendants based. proved an adverse title thereto of a higher character than a mere possessory one. But the plaintiff was not in actual possession of the land when the logs were, cut, which was in winter of 1868, 1869, and he shows no title in himself to the land, except one which is merely colorable. If the plaintiff is not the real owner of the land, and the defendants shall be compelled to pay the judgment which he recovered against them in the circuit court, what rule of law will prevent such owner from bringing an action against them for the same logs, and recovering therein? No such rule has been contended for in this case, and we are not aware that there is any such rule. The fact that a recovery by the holder of a merely colorable title is no bar to a recovery by the real owner demonstrates that none but the real owner can recover." In McNarra v. Chicago & N. W. R. Co. 41 Wis. 74, it is said: "The title necessary to be proved in order to maintain the action is the same as in an action of trespass quare clausum fregit or in replevin for timber cut and removed by a trespasser from the lands of the plaintiff. In either case, if the lands upon which the trespass was committed were vacant and unoccupied, the plaintiff must prove his title thereto, or he cannot recover. But if he was in the actual possession and occupancy of the land when the trespass was committed, he may maintain trespass or replevin, according to the exigencies of the case, without making any proof of a paper title, unless the defendant prove an adverse title thereto of a higher character than a mere possessory one. Hungerford v. Redford, 29 Wis. 345. In this case the plaintiff showed himself in actual possession of the land at the time of the injury, and the defendant did not show or attempt to show any outstanding adverse title thereto. Hence the plaintiff's possession was sufficient to sustain the action, and he was not required to establish a higher or better title." In the present case there is a claim of title by both parties. Neither is in actual possession or occupancy. Both are in constructive possession. According to the majority, each would have a right to replevy from the other, and no inquiry of ownership or title is allowable. One may have a slightly higher grade of constructive possession; but this could only be determined by a comparison of titles, | This is a new doctrine, not supported by reason or authority, and I most respectfully dissent from such holding. In dissenting, I controvert none of the authorities cited by the majority, but, so far as they are applicable, they support the view expressed in this dissent. The majority hold that title cannot be inquired into, and at the same time proceed to inquire into the title to see whether the plaintiff has constructive possession. Not only so, but they pass upon defendant's title, and pronounce it champertous. As to the difference between actual and constructive possession, and the different grades of constructive possession the mass of authorities cited by the majority is wholly unnecessary. The entire subject is fully, ably, and exhaustively discussed in Green v. Cumberland Coal & Coke Co. 110 Tenn. 35, 72 S. W. 459; but I think much of the reasoning of the majority opinion in this case is in conflict with the holding in the Cumberland Coal & Coke Case. The case of Mansfield v. Northcut, 112 Tenn. 536, 80 S. W. 437, holds that constructive possession is sufficient to sustain the action of forcible entry and detainer. But the action of forcible entry and detainer is maintained upon grounds different from an action of replevin. The only question in an action of forcible entry and detainer is one of possession. Title or ownership is not necessary to be shown. Only two questions are inquired into, viz: (1) Who was in possession? (2) How was that possession lost? Davidson v. Phillips, 9 Yerg. 95, 30 Am. Dec. 393. A trespasser who has no title. whatever may recover from the true owner if his possession is disturbed. Ibid. And the statute expressly provides that in such actions the estate or merits of the title shall not be inquired into. Shannon's Code, § 5103. But in replevin, ownership and right to possession must be shown, and not mere actual possession alone. McFerrin v. Perry, 1 Sneed, 317, and other cases cited, supra. But I will pursue the matter no further; simply contenting myself with the statement that I am of the opinion the cases cited by the majority opinion do not lead to the result reached, but to the contrary. I cite in support of this dissent the following authorities relied on by the majority: 24 Am. & Eng. Enc. Law, 2d ed. p. 486; Cobbey, Replevin, §§ 353, 376, and other sections; Cooper v. Watson, 73 Ala. 252, 255; Anderson v. Hapler, 34 Ill. 436, 439, 85 Am. | tained counts on the negligence of the train Dec. 318, and cases cited; Stockwell v. despatcher, the negligence of the conductor Phelps, 34 N. Y. 363, 90 Am. Dec. 710; Page v. Fowler, 28 Cal. 605, 610; Rees v. Higgins, 9 Kan. App. 832, 834, 61 Pac. 500; Hart v. Vinsant, 6 Heisk. 616, directly in point. LOUISVILLE & NASHVILLE RAILROAD V. E. C. DILLARD. (......Tenn..... ) 1. The conductor of a passenger train cannot be regarded as in a separate department of service from a brakeman of a freight train, so as to render the rail of the freight train, and the negligence of the conductor of the passenger train. To the last-mentioned count-the third-there was a demurrer filed, raising the question that the conductor on the passenger train stood in the relation of fellow servant to the train crew of the freight train, and hence to the defendant in error, the brakeman on that train; and therefore the company would not be liable to him for an injury caused by the negligence of such passenger conductor. This demurrer was overruled by the circuit-court judge, and his action on this matter forms the subject of the first assignment of error, which we shall now proceed to consider. The first assignment of error raises the road company liable for injury to the latter question whether the conductor on the pas by his negligence. This action was brought in the circuit court of Sumner county to recover damages for an injury inflicted upon the foot of the defendant in error in a collision that occurred in November, 1902, at Hendersonville, on the line of the plaintiff in error, between a freight train and a passenger train. There were verdict and judgment in the court below and the railway company, after motion for a new trial had been overruled, appealed and assigned errors. The defendant in error was a brakeman on the freight train. The declaration con senger train was the fellow servant of the brakeman on the freight train, or whether such conductor stood in the relation of vice principal to the brakeman. In our latest case upon the subject (Ohio River & C. R. Co. v. Edwards, 111 Tenn. 31, 76 S. W. 897) it is said: "The mere superiority in dignity, grade, or compensation, in favor of one servant of a common principal over other servants, is not a mark by which to distinguish whether or not the former is a vice principal. . . . The most general test is that, in order to be a vice principal, a servant must so far stand in the place of his master as to be charged in the particular matter with the performance of a duty towards the inferior which, under the law, the master owes to such servant, as furnishing tools (Guthrie v. Louisville & N. R. Co. 11 Lea, 372, 47 Am. Rep. 286), or machinery and appliances (Louisville & N. R. Co. v. Lahr, 86 Tenn. 335, 341, 6 S. W. 663), or giving orders with respect to work to be done by the subordinate (Nashville C. & St. L. R. Co. v. Handman, 13 Lea, 423, 429). A test frequently stated in our cases is the authority to give orders, as a vice principal, to the subordinate servant, in directing him when, where, and how to work. . . . Some illustrations of the foregoing are seen in the following cases: Louisville & N. R. Co. v. Bowler, 9 Heisk. 866; Louisville & N. R. Co. v. Northington, 91 Tenn. 56, 16 L. R. A. 268, 17 S. W. 880; Chattanooga Electric R. Co. v. Lawson, 101 Tenn. 408, 409, 47 S. W. 489. In these cases a section boss was held to stand brakeman on another train, see Daniel v. Chesapeake & O. R. Co. 16 L. R. A. 383. On the question whether railroad servants working on different trains are fellow servants generally, see cases in note to Sofield v. Guggenheim Smelting Co. 50 L. R. A. 431. as a vice principal to the section hands under him because he had power to order them with respect to their work, and also because it was his duty to see that they had proper tools with which to work. In East Tennessee & W. N. C. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883, and Louisville & N. R. Co. v. Martin, 87 Tenn. 398, 3 L. R. A. 282, 10 S. W. 772, it was held that the engineer was the vice principal of the brakeman on a train, when, in the absence of the conductor, he had power to give the brakeman orders in respect to his work, but otherwise not; and in East Tennessee, V. & G. R. Co. v. Wright, 100 Tenn. 56, 42 S. W. 1065, it was held that the conductor stands as vice principal to all of the train force, because they are all under his orders." To the same effect, Illinois C. R. Co. v. Spence, 93 Tenn. 173, 42 Am. St. Rep. 907, 23 S. W. 211. The conductor of the passenger train in question, however, had no power to give orders to the brakeman on the freight train. This ground for adjudging the relation of vice principal and of servant thereunder did not, therefore, exist. Was the conductor of the passenger train charged with any of the personal duties of the master towards the brakeman on the freight train? Was he charged with the duty of furnishing tools and appliances or a safe place to work? There is nothing to show that he was charged with such duties. Was the passenger conductor in charge of, or engaged in, a separate department of the master's busi ness? In this state the departmental doctrine is recognized in railway cases. The grounds on which it rests are thus stated in Coal Creek Min. Co. v. Davis, 90 Tenn. 711, 719, 720, 18 S. W. 387, 389: “The doctrine rests upon the theory that the vast extent of the business of railway companies has led to the division of their business into separate and distinct departments; that, by reason of this division, a servant in one branch or department has no sort of association or connection with one in another department; that this absence of association gives the servant no opportunity of observing the character of a servant in another department of labor, and no opportunity to guard against the negligence of such servant. The want of consociation is the idea underlying this limitation. This rule has not been extended by us beyond railroad corporations, and we are not disposed to extend it further than to the class of employments to which it has been heretofore limited." Under this doctrine, it has been held that a track repairer was in a different department from, and hence not the fellow servant of, the crew of a train running upon the track (Haynes v. East Tennessee & G. R. Co. 3 Coldw. 222); for the same reason, that a section foreman was not the fellow servant of the train crew (Nashville & C. R. Co. v. Carroll, 6 Heisk. 347, 361); that a watchman was not the fellow servant of an engineer (Louisville & N. R. Co. v. Robertson, 9 Heisk. 276); a telegraph operator at a way station not the fellow servant of the conductor of a train (East Tennessee, V. & G. R. Co. v. De Armond, 86 Tenn. 73, 6 Am. St. Rep. 816, 5 S. W. 600); a car inspector not the fellow servant of the crew of a switch engine (Taylor v. Louisville & N. R. Co. 93 Tenn. 307, 27 S. W. 663); a depot agent not the fellow servant of the conductor of a train (Louisville & N. R. Co. v. Jackson, 106 Tenn. 438, 61 S. W. 771); a bridge crew not the fellow servant of the crew of a freight train (Freeman v. Illinois C. R. Co. 107 Tenn. 340, 64 S. W. 1); and an engineer not the fellow servant of a telegraph operator (Illinois C. R. Co. v. Bentz, 108 Tenn. 670, 58 L. R. A. 690, 91 Am. St. Rep. 763, 69 S. W. 317). We have no case holding that separate trains constitute separate and distinct departments of railway service; nor do we think they can be so treated on principle. The reason underlying the departmental doctrine resides in, as already stated, the need of consociation to enable coemployees to judge of the caution, diligence, and efficiency of each other, in order that they may properly protect themselves against negligence. In distinct departments of the service they are regarded as constantly working apart from each other, without the opportunity of mutual observation and criticism. This reason, however, cannot be held to apply to the crews of different trains running upon the tracks of the same company. It does not appear that such crews are permanently attached to any special trains. Moreover, even if not associated upon the same train, the crews of each train, in passing and repassing and in mingling with each other in the handling of traffic in the course of their work, necessarily have an opportunity of judging to some extent how the various trains are managed by the people who man them. At best, the amelioration of the dangers incident to a hazardous business cannot be very great for the servants of a common master, even when they work in the same department, where the number of such coemployees is great, as very often happens in the railway business, and in other kinds of business. If the conductor of the passenger train in question had no control over the brakeman on the freight train, or was not charged with any duty of the master towards him, as in the furnishing of tools and appliances or a safe place to work, or was not in a different department of the master's service (and we have seen that he had no such powers and bore no such relation), which are the only exceptions our cases recognize as taking coemployees out of the class of fellow servants, then the said conductor and brakeman were fellow servants, and the master was not liable for the injuries inflicted upon one by the negligence of the other. This conclusion seems inevitable, on principle. The weight of authority likewise supports this conclusion. Baltimore & O. R. Co. v. Andrews, 17 L. R. A. 191, 1 C. C. A. 636. 6 U. S. App. 75, 50 Fed. 728; Kerlin v. Chicago, P. & St. L. R. Co. 5u Fed. 186-188; St. Louis, I. M. & S. R. Co. v. Needham, 25 L. R. A. 837, 11 C. C. A. 56, 27 U. S. App. 227, 63 Fed. 107, 112: Northern P. R. Co. v. Mase, 11 C. C. A. 63, 27 U. S. App. 238, 63 Fed. 114; MoMaster v. Illinois C. R. Co. 65 Miss. 264, 268, 7 Am. St. Rep. 654, 657, 4 So. 59; Pittsburg Ft. W. & C. R. Co. v. Devinney, 17 Ohio St. 197. There are other cases holding a contrary view. Madden v. Chesapeake & O. R. Co. 28 W. Va. 617, 618, 57 Am. Rep. 695-697; Daniel v. Chesapeake & O. R. Co. 36 W. Va. 397, 411, 413, 417, 419, 16 L. R. A. 383, 387, 389, 390, 32 Am. St. Rep. 870, 882, 885, 888, 889, 15 S. E. 162; Louisville & N. R. Co. v. Edmund, 23 Ky. L. Rep. 1049, 64 S. W. 727. The Kentucky case is based, in substance, on the ground that separate trains constitute separate departments or that they are equivalent thereto, because the crews of such separate trains are "so disconnected as not to give the one a right or opportunity for controlling, admonishing, or even observing the manner of the colaborers doing his work." We have already held this distinc tion inadmissible, in a former part of this opinion. The substance of the West Virginia cases (both collision cases), as we un derstand them, is that it is the personal duty of the master to keep the way clear, and that each conductor in charge of a train should be regarded as representing the master for that purpose. We think this view is fully met by the reasoning of Sanborn, J., in St. Louis, I. M. & S. R. Co. v. Needham, 25 L. R. A. 837, 11 C. C. A. 56, 27 U. S. App. 227, 63 Fed. 107, 112. In that case it appeared there was a rule of the company which provided "that conductors of all trains, when approaching meeting points where they are to take the siding, must go to the forward part of trains, and attend to the switch in person. On train leaving the siding, they must set up switch for the main track in person. Conductors must not assign this duty to anyone, but must attend to it in person in every instance." The decedent was a fireman on a passenger train running south from Little Rock, Arkansas, December 16, 1889. About two hours before this passenger train arrived at Alexander, a station 10 miles south of Little Rock, the conductor of a construction train of the railroad company caused the switch of the spur track at that place to be opened, ran his train upon that track and then ran it north to Little Rock, and left the switch open, when it was his duty to close it. The passenger train ran into the open switch, and Mr. Needham was killed. In answer to the contention that it was the personal duty of the master to make and keep the way safe, the court, among other things, said: "The line of demarcation between the absolute duty of the master and the duty of the servants is the line that separates the work of construction, preparation, and preservation from the work of operation. Is the act in question work required to construct. to prepare, to place in a safe location, or to keep in repair the machinery furnished by the employer? If so, it is his personal duty to exercise ordinary care to perform it. Is the act in question required to properly and safely operate the machinery furnished, or to prevent the safe place in which it was furnished from becoming dangerous through its negligent operation? If so, it is the duty of the servants to perform that act, and they, and not the master, assume the risk of negligence in its performance. The roadbed, ties, tracks, stations, rolling stock, and all the appurte nances of a well-equipped railroad together constitute a great machine for transportation. It is the duty of the railroad company to use ordinary care to furnish a sound and reasonably safe machine, to use due diligence to keep it in proper repair. and to use ordinary care to employ reasonably competent servants to operate it; but. when this duty is performed, the duty rests upon the servants to operate it carefully. In the case before us there is no evidence that the conductor who negligently left the switch open was not selected with reasonable care. There is no claim that there was any defect in the switch that hindered or prevented the conductor from closing it. The company furnished a switch sufficient to move the rails, and used due care in selecting the servant to operate it. Before this servant commenced to operate it, the switch was closed, so that the passenger train on which the decedent was killed might have passed in safety. It became the duty of the conductor, in the operation of the railroad, to open this switch, and to run his train through it upon the spur track. He did so. It then became his duty to take his train off the spur track and to close the switch. He took his train off and proceeded south, but carelessly left the is what the master's duty fairly compels, and not that the master must see that no negligent handling by an employee of the machinery shall create danger. Neither can it be said that Ryan and decedent were engaged in a different class of work. Both were employed in the movement of trains,the same kind of service. True, they were on different trains, and at the time of the accident had no opportunity of noticing the conduct of each other until too late to prevent the collision. But, being engaged in the same kind of service, and on the same division, they must naturally have often been thrown into contact and had ample opportunities for mutual supervision. To subdivide beyond the class of service, into the place of work, would carry the exception beyond well-recognized limits. It would make the trainmen on one train not fellow servants with those on another; the carpenters and machinists in one room strangers in service to those of another; one gang of section men not coemployees with another, and all because at the time their places of work happened to be different." To admit the qualification into the law of master and servant sought to be introduced in this case, making the conductor of one train the vice principal of employees upon another train, thereby declaring each train to constitute a separate department of the service, would practically break down the whole law of fellow servants as previously understood in this state. The law as it exists in this state is not unfair either to the master or the servant. While, on the one hand, it seems, on a casual view, that it is a hardship upon the servant to deny him relief for an injury inflicted upon him by the negligence of a fellow servant in whose selection he had no voice, yet it seems equally hard to make the master liaAnd it was well said by Brewer, J., in ble to one of his servants for the negligence Howard v. Denver & R. G. R. Co. 26 Fed. of another servant when he (the master) 837, 842,-a collision case: "It will not do has exercised due care in selecting such servto say that, because Ryan's engine was in ant. What more could he do? It is imthe way, and collided with decedent's train, possible that he should supervise and conthe track was not clear, and therefore the trol every act of his servants. Yet if he is master had failed in his duty of providing a made liable to each of his servants for every safe place for the employee to work in and act of all of his servants in the course of upon. The negligent use by one employee the employment,-and there may 'e, and of perfectly safe machinery will seldom be there often are, thousands of them, the law adjudged a breach of the master's duty of then places upon him a duty which everyproviding a safe place for other employees. one knows that no one can discharge. The Such a construction would make any negli- true and just view is that expressed in our gent misplacement of a switch, any negli- cases,-that, after the master has exercised gent collision of trains, even any negligent due care in the selection of his servants, the dropping of tools about a factory, a breach | danger arising from the negligence of a felof the duty of providing a safe place. The low servant is a danger which one going intrue idea is that the place and the instru- to the service voluntarily assumes; and it ments must in themselves be safe, for this is a risk for which it is presumed he is |