Bates v. Southern Ry. Co.

• Decision Date: 12 March 1931
• Docket Number: 2 Div. 963.
• Citation: 133 So. 39,222 Ala. 445
• Parties: BATES v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

133 So. 39

222 Ala. 445

BATES v. SOUTHERN RY. CO.

2 Div. 963.

Supreme Court of Alabama

March 12, 1931

Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.

Action in nature of ejectment by the Southern Railway Company against A. Calhoun Bates. From a judgment for plaintiff defendant appeals.

Affirmed.

Whether defendant's use of land was sufficient to charge plaintiff railway, a coterminous owner, with notice that defendant and his predecessors claimed adversely, held for jury.

The facts are stated by the court:

This is a statutory action in the nature of an action of ejectment brought by appellee against appellant to recover possession of a strip of land 20 feet, more or less, in width, and 100 feet in length, commencing at a point on the west line of Sylvan street in the city of Selma, Ala., north of the northwest intersection of Sylvan street and Jeff Davis avenue, and 50 feet south, at right angles, to the center line of the main track of the Southern Railway, constituting a part of the right of way of the plaintiff, the Southern Railway Company.

The defendant pleaded the general issue.

The evidence upon which the case was tried consist of an agreement as to facts, the deeds constituting the muniments of title under which the parties claim, and affidavits showing certain acts of ownership on the part of the defendant.

From this evidence it appears that Wesley Plattenburg and his wife, Anna R. Plattenburg, on the 12th of May, 1866, by deed which was filed for record on May 24, 1866, granted to the Selma & Meridian Railway Company, its successors and assigns a right of way through their lands, in Dallas county described as follows: "Commencing at a point a little west of Valley Creek at the intersection of the center line of the track of the Selma & Meridian Railroad, with the half section line dividing section 35 from north to south, thence running easterly one and one-half miles, more or less, taking a strip of land fifty feet on each side of said center line, until it runs out of section 36, on the south boundary of said section, which is also the township line; said crossing or intersection point being a little west of the section corner, and near the range line road-the right of way herein conveyed extending through the land [of the said Plattenburgs], and over the same from the west bank of Valley Creek near the City of Selma, to the range line road, it being 100 feet wide or 50 feet on each side from the center of the present railroad track."

The strip of land in controversy is within the right of way limits covered by this grant, and it appears that at the time of the grant by Plattenburg to the railroad company, he owned the land covered by the grant and the lands immediately contiguous thereto. That thirty years or more before the trial the Selma & Meridian Railway Company conveyed all of its right, title, and interest to said right of way to the plaintiff, the Southern Railway Company; that the plaintiff and its grantor, continuously since the year 1866 and up to the trial, used a part of said right of way, not including the strip described in the complaint, as a right of way for the operation of their respective railroads as common carriers of freight and passengers. That the Southern Railway had no occasion for the use, in the operation of its railway, of the strip of land involved in this suit. That Anna R. Plattenburg, widow, who acquired title to the lot described in her deed to Walton Osborn, from Wesley Plattenburg's estate, on April 5, 1904, by warranty deed, conveyed to said Osborn "the following described lot: That lot of land known and designated as lot 8 in Block X of the Plattenburg Addition, which begins at the northwest intersection of North and Sylvan Streets in the City of Selma, Dallas County, Alabama; thence running west along the north margin of North Street 338 feet more or less; thence northwardly and at right angles to the line of the East Tennessee, Virginia and Georgia Railway Company 85 feet and 6 inches to the right of way of said railroad; thence southeastwardly on the margin of said right of way 331 feet to the west margin of Sylvan Street; thence southwardly at right angles to the line of said right of way of said railway company, and along the west margin of Sylvan Street 18 feet and 2 inches more or less, to the point of beginning. *** Together with all and singular the tenements, hereditaments, rights, privileges and appurtenances thereunto belonging or in any wise appertaining, except the small house, fences and outbuildings, now on said lot of land, which are the property of Ann Minter, and which are owned by her, and which she is authorized to remove, under a ground rent lease." (Italics supplied.) This deed was recorded on the 8th of April, 1904.

Attached to the agreed statement of facts, and made a part thereof, is a diagram or map showing the location of the tracks of the Southern Railway, and the line of its right of way located 50 feet south of the center of the main line tracks and running parallel therewith. The diagram or map also shows what is designated thereon as "Block X," which is "a plane figure formed by four right lines of which no two are parallel," in geometrical terminology a trapezium. This block lies immediately south of the right of way, and is bounded on the north by the said right of way, on the south by Jeff Davis avenue, on the west by Lawrence street, and on the east by Sylvan street.

The lot marked "A. C. Bates" is made up of the eastern portion of block X, and the strip of the right of way, the subject of the controversy, inclosed by a fence located approximately 25 feet north of the line of the railway's right of way, and shown by the diagram to be 121 feet on its northern boundary, 63 feet and some inches on the west, 120 feet on the south, and 39 feet on the east. The map of Plattenburg's addition does not appear in the record, and no reference is made to it except as in the descriptions in some of the deeds offered in evidence.

The stipulations of facts shows: "That the lot marked A. C. Bates on attached map, including the strip sued for, was enclosed by a fence and taken possession of by Walton Osborn at date of his said deed; that said fence has continued in same place up to the time of the commencement of this suit; that said lot, including said strip, has been continuously in the visible, open, notorious and peaceable possession of the said Osborn and his successive mesne grantees, each claiming to own same in his or her right."

Osborn and wife conveyed the lot purchased from Anna R. Plattenburg to George Wise on January 26, 1905, and Wise took possession of the property inclosed by the fence at the time of the conveyance by Anna R. Plattenburg to Osborn, and on September 6, 1906, Wise conveyed to Alfred Wilson, by warranty deed, a parcel of land described as follows: "Commencing at a point formed by the northwest corner of Sylvan and North Streets and from this point running in a northwesterly direction along the west margin of Sylvan Street 18 feet more or less, to the right of way of the Southern Railway, thence in a westerly direction along said right of way and parallel with North Street, 195 feet more or less to a lot now owned by one Annie Minter; thence southerly and parallel with Sylvan Street 60 feet more or less, to the northern margin of North Street; thence in an eastwardly direction along the north margin of North Street 195 feet more or less to Sylvan Street and the point of beginning." (Italics supplied.)

"Alfred Wilson, in 1907, built a store house on said property, substantially covering the ground shown on said map as one-half story store constructed by A. C. Bates; all of which is south of the fence." The store referred to here, as it appears on the map, is located at the eastern end of the parcel of land, sitting parallel with Jeff Davis avenue, and is in dimensions 34x58 feet.

Wilson died April 28, 1923, and whatever title he had descended to his only heir Octavia Wilson, who took possession under bona fide claim of inheritance, and remained in possession, collecting the rents, until she conveyed by quitclaim deed to Bertha Eliasberg on June 4, 1927, describing the property as follows:

"Beginning at a point on the north margin of Jeff Davis Avenue 938.8 feet east of the east line of Franklin Street, thence running eastwardly along the north margin of Jeff Davis Avenue a distance of 120 feet more

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