East Alabama Railway Co. v. Doe ex dem. Visscher

delivered the opinion of'the. court.

In November, 1880, the defendants in error brought an action of ejectment, in thé Circuit Court of Chambers County, Alabama, against the East Alabama Railway Company, to recover premises described in the complaint as follows: “A certain tract or parcel of land, being the railroad bed of the railroad formerly known and called the East Alabama and Cincinnati Railroad, from Lafayette to'the county line of Lee County, together with all the land contiguous to said roád-bed, on each side thereof, to .the distance of T5 feet from the centre thereof, said railroad being now known and called as the East Alabama Railway, with the appurtenances, situate in the county of Chambers aforesaid.” Lafayette is in Chambers County, and Lee County lies south of Chambers. The. suit. was . duly removed by the company into the Circuit Court of the United States for the Middle District of Alabama. It was tried before a jury, in December, 1881, on a suggestion that/the company had been in adverse possession of the premises for more than three years before the bringing of the suit, and'had made permanent and valuable improvements by building a railroad thereon, and on the plea of not guilty. The jury found for the plaintiffs “ for all the property described in the complaint,” and assessed their damages at $3,963.40, and there was a judgment accordingly. The company brings a writ of error.

The bill of exceptions sets forth all the evidence in the cause.

“ Mary F. McLemore to Opelika and Oxford É. JR. Go. Alabama, Chambers County: .

This indenture, made this 31st day of August, in the year of our Lord one thousand eight hundred and sixty, between Mary McLemore, of Chambers County, of the one part, and the Opelika & Oxfor ' R. R. Company, of the- other part, wit-nesseth : That the said Mary F.' McLemore, for and in consideration of the sum of one dollar to her in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth give, grant, bargain, and sell unto the said railroad company, and their successors and assigns, the right of way over which to pass at all times by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the

Maby F. McLkmoee.”

As to the excepted case, which related to a section of land, one mile square, in Chambers Count}'', through which the road

' The company became embarrassed for Avant of means dur'ing the Avar, and ceased, before July, 1861, to do any Avork on the line, leaving it incomplete as to grading and culverting, and no-work was done by it afterwards on the line. Richards, as late as 1863, removed, at a small expense to himself individually, some logs Avhich had lodged in one of the culverts, to save the culvert and grading from injury, and he looked over the Avork from time to time. No meeting of the directors or stockholders was held after July, 1861, and no corporate act was done by either after that date. • The company was without means to prosecute the building of the road any further.

One Lockett and the firm of D. W. & J. G. Yisscher Avere contractors, to Avhom the. company Avas indebted for Avork on the line. Lockett recovered one "judgment and the Yissehers another against the company, October 26, 1866, in a court of the State, by service of process on Richards, as president, the former for $14,457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers County, November 7, 1866, and levied on that day, according to the return on each" writ, on a house and lot, and also on “ the right of way to the Opelika and Oxford Railroad, so far as the

“ This indenture, made and .entered into this 3d day of June, 1867, between R. J. Kellam, sheriff of the County of Chambers, in the State of Alabama, of the one part, and D. W. & J. G-. Yisscher and A. L. Woodward, of the other part, witnesseth: That whereas, on the 26th day of October, 1866, a judgment was duly rendered in the Circuit Court for the County of Chambers, in the State aforesaid, at the fall term of the said Court, for the sum of twelve thousand three hundred and eighty-three dollars, and costs, in. favor of Abner M. Lockett, and one in favor of D. W. & J. G. Yisscher, for fourteen thousand four hundred and fifty-seven dollars and twenty-one cents, and against the Opelika and Oxford Railroad Company, on which said judgments there was issued by the clerk of the Circuit Court for said county, on the 8th day of May, 1867, certain -writs of fieri facias in favor of said Abner M. Lockett and D. W. & J. G. Yisscher, and against the said railroad company, directed to any sheriff of the State of Alabama, whereby such sheriff was directed to levy of the estate, &c., of said railroad company, and make the said sum of twenty-six thousand seven hundred and fifty-one yfj- dollars, besides costs, and which said writ was, on the 8th day of May, 1867, placed in the hands of the said R. J. Kellam, as sheriff of said County of Chambers,

In testimony whereof, the said party of the first part has signed, sealed, and delivered this deed on .the day it bears date.

Robeet J. KeleaM,'

Sheriff of Chambers County, AldbamaP

After the sheriff’s sale Richards abandoned or turned over to the purchasers the line of cúlverting or grading, as far as he could do so, that is, he exercised no further, authority over it,' and the' Opelika and Oxford Railroad Company made no further claim to it. On the 6th of April, 1870, D. ~W. and J. G. Yisscher entered into a written contract with the Eufaula, Opelika, Oxford and G-untersville Railroad' Compan}^ which was signed on behalf of that company by one Pennington, a¡s its president, and was recognized and acted on by it. Its name .was afterwards changed to the East Alabama and Cincinnati Railroad Company. The two companies .were one and the same corporation, chartered by Alabama to build a railroad from' Eufaula to Guntersville via Opelika and Oxford. In the fall before the contract was entered into, D. ~W. Yisscher was invited by Pennington to see him as to whether Pennington’s company could not arrange to purchase for its line Yisscher’s grading and right of way from said junction to Lafayette. Pennington told Yisscher he could build by the side of Yiss-cher’s line, but would like to purchase it; and they agreed that the Yisschers should go to work completing the grading, and that Pennington’s company would furnish the means to pay for the work as it progressed. The work was begun, with the verbal understanding that the written contract should be executed, and it went on till that contract was executed, and then under the contract till the Yisschers completed it to Lafayette, over the right of way or line described in the deeds therefor, and, the company accepted'it as_ dono according to the contract, about. May 3, 1871.

By tbeterms of the contract it was agreed that the Yisschers should “form, prepare and finish the clearing and grubbing,

Under a decree of sale made in a suit for the foreclosure of a-mortgage made by the East Alabama and Cincinnati Bail-road Company, Edward Livingston and Bichard Irvin, Jr., purchased, and received from the proper officer, on the 19th of April, 1SS0, a deed of the “ entire corporate property of, or belonging to, the East Alabama and Cincinnati Bailroad Company, used for railway purposes, and all and singular the entire railroad of said company, extending from Eufaula, Alabama, to Guntersville, Alabama, being about two hundred and twenty miles in length, at present unfinished, its entire franchises and privileges, held and acquired, together with the right of way, road-bed, road, . . . and all its ways and rights of way,” &c. The plaintiff in error became a corporation, under the laws of Alabama, on the 28th of May, 18S0, and, on the 13th of July, 18S0, Livingston and Irvin conveyed to it the property so deeded to them, by the same description.

At the trial, the plaintiffs offered in evidence transcripts of the proceedings as to the said judgments, executions, levies, sale, and sheriff’s deed. The defendant objected to each of them “ as illegal and irrelevant evidence, and also because they

After the close of the testimony the court charged the jury that if they believed from the evidence that the company before named entered into the written contract with the Yisschers, ■ and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Yisschers did perform it so far as permitted by the corporation to do so, and the corporation failed to make the full payments ’due to the Yisschers under the contract, the corporation, and all persons claiming under it, were estopped from setting up any title in the 'premises sued for adverse to the Yisschers, and their possession under the contract was not adverse.

The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant. that it was only an easement, and not the subject of a levy and sale under execution, was not well founded.

To each of these charges the defendant excepted-. There were exceptions-to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned.

The right which the Opelika and Oxford Company obtained under the deeds from McLemore and others (and the -right obtained by condemnation is set forth as of the same character) was described in the deeds as “ the right of way over which to pass at all times, by themselves, directors, officers, agents, hirelings and servants, in any manner they may think proper, and particularly for the purpose of running, erecting and 'establish ing thereon a railroad with requisite number of tracks; ” and it was provided that, “ to this end, the limit of said right .of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed,

The right granted was merely a right of way for a-railroad. It was granted to an existing corporation, which had a franchise. The grant to the “ assigns ” of the corporation cannot be construed as extending to any assigns except one who should be the assignee of its franchise to establish and run a railroad. Nor did the mention of rights, members and appurtenances belonging and appertaining to the strip of land, or the use of the words “ forever, in fee simple,” enlarge what was otherwise the limited character of the grant. No fee in the. land was convejmd, nor any^estate which ■was capable of being sold on execution on a judgment at law, or separate from the franchise to make and own and run a railroad. The corporation could not have made a voluntary conveyance of the right of way, severed from its franchise. What it acquired was merely an easement in the land, to enable it to discharge its function of making and maintaining a public highway, the fee of the soil remaining in the grantor. By the terms of the

The bill of exceptions states that a like right of way through the lands of -the proprietors of the soil was obtained by deed, in Lee County, from a point about two miles north of Opelika to the south line of Chambers County; and that, under executions issued to-Lee County on the same judgments, there were levies made on the right of ! way of the company so far as ■ the same had been, obtained by it up the line of Chambers

The policy of the State of Alabama on this subject is indicated vby the provisions of her Constitutions of 1865, Art. 1, § 25, of 1867, Art. 1, § 25;and of 1875, Art: 1, § 24: “That private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner; Provided, however, That laws may be made securing to persons or corporations the right of way over the lands of other persons or corporations ; ” “but just compensation shall, in such cases, be first made to the owner.” In Alabama & Florida Railroad Co. v. Burkett, 42 Ala. 83 , it was held that, under this provision, a railroad company acquired no absolute title to land in fee simple, but only a right to use for its purposes. Nor is a right of way such as may be thus secured, or such as was granted by deed in the present case, within the meaning of the provision of the Code of Alabama, that executions may be levied on real property in which the defendanthas a vested legal interest, in possession, reversion or remainder, whether he has. the entire estate, or is entitled to it in common with others.” Code of 1852, § 2455 ; Code of 1867, §,2871; Code of 1876, § 3209.

We are not referred to any decision of the Supreme Court' .of Alabama made before the rights involved in this suit arose, - or ‘before this suit was brought, determining the questions here involved. Two unreported cases are cited by the defendants in error: Tennessee & Coosa Railroad Co. v. East Alabama Railway Co., decided at December Term, 1883; and Hooper v. Columbus & Western Railway Co., decided at December Term, 1884. To these cases, if they were in point, the doctrine al

But the cases cited are not in point. In the first one a railroad corporation, having a franchise, and claiming the legal title and ownership of rights of way, and of a line of railroad, which was being operated by the defendant, another railroad corporation, brought ejectment to recover the property. The. defendant corporation had a junior franchise, and claimed to have purchased the entire property sued for,- under a title emanating from the plaintiff. It was held that the plaintiff could recover. In the second case an individual having the legal title to a strip of land through which a railroad com-, pany had been permitted by him to construct its road' was held to be entitled to recover .the .land in ejectment from the company, which had failed to pay him for the right of way.

This court decided, in Gue v. Tidewater Canal Co., 24 How. 257 , that a corporate franchise to take tolls on a canal, could not be seized and sold under a fieri facias, unless authorized by a statute of the State which granted the act of incorporation; and that neither the lands nor the works essential to the enjoyment- of' the franchise could be separated from it and sold under such a writ, so as to destroy or impair the value of the franchise. This decision was put on the ground, that the franchise or right to take toll on boats going through the canal would not pass to the purchaser under the execution on a judgment at law against the corporation, because it was an incorporeal

It is contended for the plaintiffs that the defendant is estopped from denying that they were seized in fee of the property sued for, on the ground that- Richards, after the sheriff’s sale, abandoned or turned over to the Yisschers the line of culverting- and grading, as far as he could do so, that is, he exercised no further authority over it, and the Opelika and Oxford Company made no further claim to it; that the Yisschers then made the written contract with the new railroad company to construct the superstructure of the road, except as to the iron materials, for the twenty miles from in or two miles north of Opelika to a point beyond Lafayette, for a specified compensation; and that the contract provided that on the completion of the twenty miles, and the payment of the amount agreed, Yissclier should transfer to the company “ all right and title vested in him to all franchises, right. of way or other property belonging to or pertaining to the said road under the old organization known as the Opelika & Oxford R. R.” The bill of exceptions states that the defendant offered evidence tending to show that the East Alabama and Cincinnati Railroad Company was in possession of the property sued for from'the time the Yisschers ceased their work on it, as well as of the remainder of its line of railroad, till assignees in bankruptcy took possession of it, from whom it passed to purchasers' from them, and then a receiver in the foreclosure suit took possession of it, and held it till it was sold to the persons who conveyed it to the defendant. The Yisschers appear not to-have been in possession from the time they ceased work. They yielded possession, but not under any provision in the contract. As to the new work done by the Yisschers they became merely creditors, out of posses

It follows, from these views, that the Circuit Court erred in its first and third charges to the jury, and, as this conclusion goes to show that the plaintiffs had no 'title on which they could recover in ejectment, it becomes unnecessary to consider any of the other questions raised by the defendant.

The judgment, is reversed, and'-the ease is remanded to the Oi/reuit Court, with a direction to grant a new trial.-