Brown v. Alabama Great Southern Ry. Co.

• Decision Date: 21 March 1929
• Docket Number: 7 Div. 847.
• Citation: 219 Ala. 87,121 So. 91
• Parties: BROWN v. ALABAMA GREAT SOUTHERN RY. CO.
• Court: Alabama Supreme Court

121 So. 91

219 Ala. 87

BROWN v. ALABAMA GREAT SOUTHERN RY. CO.

7 Div. 847.

Supreme Court of Alabama

March 21, 1929

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

Bill in equity bye the Alabama Great Southern Railway Company against A. J. Brown. From a decree for complainant, respondent appeals. Affirmed.

Chas J. Scott, of Ft. Payne, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

GARDNER J.

The bill in this case was filed by the appellee railroad company seeking relief by way of equitable estoppel against an action in ejectment brought against it by the appellant. The salient features of the bill appear in the statement of the case on former appeal (Alabama Great Southern R. Co. v Brown, 215 Ala. 533, 112 So. 131), and need no repetition here. The answer, aside from the admission of formal matters, contained only general denials of the material averments of the bill. Upon former appeal, it was held, consistent with our previous decisions, that for the "taking or injury to the land by the construction of a railroad, the measure of damages is the value or the diminution of value at the time and the right of action accrues to the then owner, which was the Kaolin Land Company and does not pass to the respondent, Brown, the grantee of said company."

Upon this appeal it appears that respondent Brown's interest in the property was by virtue of a purchase at judicial sale, and it is insisted that these proceedings, including the decree of sale as well as the decree of confirmation thereof, vested respondent with more than a mere interest in the land. We are inclined to the view that a consideration of these proceedings, which appear in the record, would not support this contention; but we find this question not here presented, as such proceedings, while offered in evidence before the register who took the testimony, were not noted in the note of testimony as part of respondent's evidence as required by Chancery Rule 75, and as decided by numerous decisions of this court to be essential for consideration as testimony in the cause. Bixler v. Zeidman (Ala. Sup.) 119 So. 211, and authorities there cited.

It is further argued that certain correspondence had between respondent and complainant's superintendent after purchase of the land by respondent was sufficient to create an estoppel against complainant to deny respondent's rights. Aside from the fact that the answer contains no intimation of the defense of estoppel (Jones & Co. v Peebles, 130...