Alabama Great Southern R. Co. v. McWhorter

• Decision Date: 06 February 1919
• Docket Number: 7 Div. 950
• Citation: 202 Ala. 455,80 So. 839
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. McWHORTER.
• Court: Alabama Supreme Court

80 So. 839

202 Ala. 455

ALABAMA GREAT SOUTHERN R. CO. v. McWHORTER.

7 Div. 950

Supreme Court of Alabama

February 6, 1919

Appeal from Circuit Court, De Kalb County; W.W. Harralson, Judge.

Ejectment by H.P. McWhorter against the Alabama Great Southern Railroad Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

The action is for a small strip of land on either side of the defendant's right of way, and it is agreed between the parties that Vann Hall is the common source of title. It is also agreed that the Wills Valley Railroad Company was the predecessor of the present defendant, and that the present defendant acquired all the property rights, etc., of the Wills Valley Railroad Company. The grant referred to in the opinion is as follows:

"This indenture made on the 6th day of October in the year 1868 between Vann Hall, a citizen of the county of De Kalb and state of Alabama, and his wife, Polly, parties of the first part, and Wills Valley Railroad Company, a corporation chartered by the state of Alabama, party of the second part, witnesseth:

"That whereas the said party of the second part has located a road through the lands of the parties of the first part, and being desirous of obtaining the right of way through said lands before commencing and completing the work of construction of said railroad:

"Now, for the encouragement of the party of the second part in the building and completion of said railroad and in consideration thereof, we, the parties of the first part, do hereby give, grant, and convey unto the said party of the second part the right of way through said lands aforesaid for the purposes aforesaid, that is to say, we hereby give grant, and convey to the party of the second part a strip of land measuring fifty (50) feet each way from the line of said railroad as now located, and that we will warrant and defend the aforesaid lands in the quiet and peaceable possession of the said party of the second part, their heirs and assigns forever.

"In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written.

"Sealed and delivered in the presence of Benj. F. Payne.

Vann Hall. [ Seal.]

"Polly Hall. [ Seal.]"

Goodhue & Brindley, of Gadsden, for appellant.

Hunt &amp Wolfes, of Ft. Payne, and Luke P. Hunt, of Birmingham, for appellee.

MAYFIELD J.

This is an action of ejectment as to a strip of land on each side of the railroad track of appellant in De Kalb county. Appellant contends that it is a part of its right of way which it acquired by grant; while appellee contends that he and those through whom he claims have acquired title thereto by adverse possession against appellant.

It is not disputed that appellant did acquire title by virtue of grants; but it is insisted that it has lost its title by adverse possession of appellee and those through whom he claims title.

There is no claim of appellant to this railroad track, or the main road bed on which the main track is located, and to a certain strip of the right of way on either side of this road bed. But it is claimed that appellee has acquired title to strips of land off the extreme sides of the right of way, ranging from 15 to 20 feet on either side, the two combined being from 30 to 40 feet in width, leaving to appellant a right of way from 60 to 70 feet in the center of its right of way which was originally 100 feet in width. That portion claimed by appellee is that part on the margin of the right of way which has been actually occupied and cultivated by appellee, and those through whom he claims continuously for more than 10 years prior to the bringing of the suit. There is no dispute as to the possession of appellee as to length of time continuously, etc.; the dispute being as to whether it was adverse to or permissive of the owner.

This question to decide is made to depend in some degree at least upon the construction to be placed on the original grant from the common source of title to appellant's predecessor in title.

It is contended by appellant that this deed or grant passed only an easement to the land described, and not an absolute fee, as is contended by appellee.

The deed or grant will be set out by the reporter, so this opinion and decision may be the better understood.

The deed, we hold, passed only an easement for the purposes set forth therein, that is, a railway right of way, and not an absolute fee to lands described therein. This being true, we hold that plaintiff's possession was not adverse to appellant. It was permissive and not adverse. The intention of the holder could not make it adverse until this possession became inconsistent with the grant. The grantor and those claiming under him after the grant had the right, even against the grantee, to use the land granted, if such use did not interfere with the use for which the grant was made. Such possession and use as did not interfere with the use by grantee was in accordance with, and not against, the grant of the right of way. The grantee could not prevent such use or possession of the right of way as did not at all interfere with the use thereof for a railroad right of way. It is true the...