Boone v. Gulf, F. & A. Ry. Co.

• Decision Date: 09 May 1918
• Docket Number: 1 Div. 23
• Citation: 201 Ala. 560,78 So. 956
• Parties: BOONE et al. v. GULF, F. & A. RY. CO.
• Court: Alabama Supreme Court

78 So. 956

201 Ala. 560

BOONE et al. v. GULF, F. & A. RY. CO.

1 Div. 23

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Monroe County; Ben D. Turner, Judge.

Suit by Frank Boone and others against the Gulf, Florida & Alabama Railway Company. Demurrer to defendant's cross-bill overruled, and plaintiffs appeal. Affirmed.

H.H McClelland, of Mobile, and Barnett, Bugg & Lee, of Monroeville, for appellants.

Phillip D. Beall, of Pensacola, Fla., for appellee.

SAYRE J.

Appellants filed this bill asserting their ownership of a certain tract of land in Monroe county, averring that appellee corporation without grant or leave from them and without proceedings to condemn a right of way, had constructed its railway over the tract, and praying that appellee be required to pay the value of the right of way thus occupied by it, or, in default thereof, that it be enjoined from the further use of the same. Appellee, answering, made its answer a cross-bill under the statute, averred its ownership of the tract in question and prayed that its title be quieted against the claim of appellants. Demurrer to the cross-bill was overruled, after which this appeal.

Appellants claimed title by inheritance from John Hathcock, who, in 1859, purchased the land from the United States government under the provisions of Act Cong.

Aug. 4, 1854, c. 244, 10 Stat. 574, providing that "any person applying to enter any of the aforesaid lands, shall be required to make an affidavit before the register or receiver of the proper land office, that he or she enters the same for his or her own use and for the purpose of actual settlement and cultivation, or for the use of an adjoining farm or plantation owned or occupied by him or herself," etc. Appellee averred in its cross-bill that Hathcock at the same time paid the full purchase price of the land, and then and there became entitled to a patent, but that thereafter and long after the death of Hathcock, in, to wit, 1907, and not until then, patent was issued in the name of their ancestor Hathcock and delivered to appellants, his heirs.

Appellee, showing its own claim of title on the other hand, averred that the land had been assessed by the state for taxation in 1869, had been sold at tax sale in 1870 to J.F. McCorvey, to whom deed was made in 1872, and under whom it claimed through mesne conveyances. Appellee further averred that it and its predecessors in title, to state the general effect of the averment, had been in adverse possession of the land for more than 30 years, and, further, sought to estop appellants from asserting their claim under the patent by showing that for 20 years they had stood silently by while appellee and its predecessors in title paid the taxes, put valuable improvements upon the land, and brought the same into a high state of cultivation.

Whether the land over which appellee has constructed its railway was subject to taxation by the state in 1869 is the principal question in this case, and that question must be answered in the affirmative. We have held that a patent issued under circumstances similar to those of this case invested the heirs of the patentee with no new or additional property in the land, but only gave them better and conclusive evidence of the title acquired by him; that, in cases of sales by the United States, the law gives the right, and the patent is to be considered, not as the title itself, but as the evidence by which it is shown that the prerequisites to a legal sale have been complied with; that the payment of the purchase money vests a perfect equity in the purchaser, leaving in the general government no more than a bare, technical legal title, held in trust for the purchaser, and that to this equity, except as against the United States and those claiming under it, the state may attach what incidents and qualities of property it pleases. Birmingham Coal & Iron Co. v. Arnett, 181 Ala. 621, 62 So. 26. It is entirely clear that the property of the United States cannot be taxed by a state or any of its governmental subdivisions. But it is the well-settled law of the federal courts that when all the conditions prescribed by Congress for the alienation of the public domain have been complied with, the land alienated being distinctly defined, and it only remains for the officers of the government to discharge their ministerial duty by the issue of a patent, the right thus vested in the purchaser is equivalent, so far as the government is concerned, to a patent actually issued, and the land in the hands of the purchaser is taxable by the state, notwithstanding the legal title yet rests in the government; the principle underlying the rule being that one who has acquired the beneficial ownership of the land, and is not excluded from its enjoyment, cannot be permitted to use the fact that the naked legal title remains in the government to avoid his just share of state taxation. Bothwell v. Bingham County, 237 U.S. 642, 35 Sup.Ct. 702, 59 L.Ed. 1157; Barney v. Dolph, 97 U.S. 652, 24 L.Ed. 1063.

It results also from the principle of the foregoing authorities that the land, in the state of its title, was capable of being held adversely to the original entryman and those claiming through him, and that appellee may have acquired title under the general statute of limitations of ten years or under the short statute of five years made and provided in cases of the sale of lands for taxes and in force at the time of the sale to the ancestor of appellants. Payment of the purchase money vested in the entryman and his successors all the substantial interest of the government, with an inchoate legal title, alienable, descendible to heirs, subject to execution or other liens, and to be divested or transferred in the same manner as any other legal title. In the federal courts such title will support trespass, waste, or ejectment. Cawley v. Johnson (C.C.) 21 F. 492. If appellants or their ancestor had a certificate of payment, on that they might have maintained ejectment in the courts of this state. Code, § 3980. Otherwise they might have maintained an equitable action for the recovery of the land. It is true that the statute of limitations does not run against the government; but...