Brown v. Alabama Great Southern R. Co.

• Decision Date: 07 April 1989
• Citation: 544 So.2d 926
• Parties: R.B. BROWN v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY. 88-319.
• Court: Alabama Supreme Court

Page 926

544 So.2d 926

R.B. BROWN v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY.

88-319.

Supreme Court of Alabama.

April 7, 1989.

Rehearing Denied May 26, 1989.

Michael L. Brownfield, Fort Payne, for appellant.

F. Michael Haney and James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.

HOUSTON, Justice.

Alabama Great Southern Railroad Company ("Railroad") filed this action in ejectment against R.B. Brown for recovery of possession of a railroad right-of-way between the Railroad's milepost 32 and milepost 38, located in DeKalb County, Alabama. Brown denied the allegations of the Railroad's complaint and claimed to be the fee simple owner of the real estate between mile 32 and mile 37 1/2. In a counterclaim, Brown sought damages for, among other things, the Railroad's alleged destruction of his real and personal property.

The Railroad moved for summary judgment. The trial court granted a partial summary judgment as to the location and the width of the Railroad's right-of-way. The issues of whether Brown acquired title to the portion of the right-of-way in question by adverse use and of whether Brown was entitled to damages for destruction of his property were submitted to the jury. The jury found that Brown had acquired no portion of the right-of-way by adverse use but awarded him damages of $7,500 for destruction of his property by the Railroad. Brown's posttrial motions were denied, and he appealed. We affirm.

Brown states the issues as: Did the trial court err in ruling that the evidence showed, without dispute, that the Railroad owned a right-of-way extending 50 feet on each side from the centerline of its track between mile 32 and mile 37 1/2? Did the trial court err in refusing to set aside the jury finding that Brown did not adversely possess any portion of the Railroad's right-of-way? Did the trial court err to reversal in giving its oral charge regarding exclusive possession for proving adverse possession? Did the trial court err to reversal in failing to charge on trespass to realty?

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. This action was pending prior to June 11, 1987; therefore, Alabama Code 1975, § 12-21-12, does not apply and the applicable standard of review is the "scintilla rule." Kizziah v. Golden Rule Ins. Co., 536 So.2d 943 (Ala.1988).

The subject of this action is a five and one-half mile stretch of track located in DeKalb County, which is part of the Railroad's main line running from Birmingham to Chattanooga, Tennessee.

Brown is the owner of the property that joins the Railroad's right-of-way for that 5 1/2 miles, extending between the 32-mile mark and the 38-mile mark. He acquired title to that adjoining property through inheritance and by deed.

The Railroad and its predecessor in interest, Wills Railroad Company, have operated and maintained the railroad line through DeKalb County since 1859, when Wills Railroad Company began acquiring the 50-foot right-of-way by a series of deeds, for the safe and efficient operation of the railroad and for maintenance of the track. Although most of the deeds presented by the Railroad did not indicate the width of the right-of-way or did not contain a description of the property over which the right-of-way was granted, several of the deeds in Brown's chain of title made reference to the Railroad's right-of-way in describing the property conveyed to him. In any event, in Alabama Midland Ry. v. Brown, 98 Ala. 647, 13 So. 70 (1893), we recognized that a grant of a railroad right-of-way of a non-specified width should be construed as "not exceeding 100 feet," as that was the width that a railroad company could acquire through condemnation. See also Ala.Code 1975, § 10-5-2. In addition, valuation maps of railroad properties, prepared as early as 1914 pursuant to Interstate Commerce Commission requirements, evinced a 50-foot right-of-way on each side of the centerline of the track through the property in question.

In 1927, Brown's grandfather filed an ejectment suit against the Railroad, contending, like Brown, that the Railroad was unlawfully located on his property. In Alabama Great Southern R. R. v. Brown, 215 Ala. 533, 112 So. 131 (1927), the Court recognized the right-of-way in question as a strip of land not over 100 feet wide and extending 50 feet on each side of the center of the Railroad's main track of railroad.

As a result of that suit, the Railroad filed a suit in equity, seeking an adjudication that the Railroad owned an easement of 50 feet on each side of the center line of the track. The circuit court granted the relief sought by the Railroad and enjoined Brown's grandfather from further prosecuting his ejectment suit and from interfering with the Railroad's use and possession of the easement. In Brown v. Alabama Great Southern R. R., 219 Ala. 87, 121 So. 91 (1929), we affirmed the holding of the circuit court:

"It appears that since the year 1907, when the property here in controversy was by [the Railroad] enclosed by a fence, the [Railroad] has been continuously and exclusively in possession, maintaining and improving the same for railroad purposes, such as the extension of the 'passing track,' which seems to have been located on the property prior to 1907, this extension being done, evidently at considerable expense, in 1912 or 1913, ditching and grading the land, maintaining telephone and telegraph wires, automatic block signals, battery boxed towers with concrete foundation thereon. While some of these improvements may have been further improved or replaced subsequent to [Brown's grandfather's] purchase, yet we agree with the court below that decidedly the greater portion thereof was placed on the land several years before, and we are further persuaded [that Brown's grandfather] purchased with a knowledge of the situation as to the continuous and exclusive possession of [the Railroad] as to this property."

219 Ala. at 88-89, 121 So. at 92-93. In addition, the record reveals that in 1907, when the Railroad Commission ordered the Railroad to erect fencing from milepost 31.5 to milepost 75, the Railroad Commission and the property owners recognized the Railroad's right-of-way.

The testimony of Railroad employees further evinced the Railroad's use and possession of the claimed 50-foot right-of-way on each side of the centerline of the track. They testified that the right-of-way was used for drainage purposes, as a work area by the timber and surfacing crew when repairing track, for installing and removing crossties, for laying rail, and for ditching and storing debris removed from the roadbed so that it would not wash back on the tracks. In addition, they testified that they never saw any encroachment by Brown until 1980, when he built a fence within 50 feet of the track, and that he later constructed an electric fence as close as 18 feet from the centerline of the track. Further testimony revealed that the Railroad maintained weed and bush control along the track by using spray and mowers for a minimum of 25 feet on each side of the track and for up to 50 feet near curves and crossings. The evidence also showed that telegraph poles had been located within the claimed right-of-way until 1980, when the Railroad removed them because communication lines had been placed underground.

Brown testified that he had lived within one-half mile of the track all of his life; that he remembered that there was fencing along the track, or at least remnants of that fencing, visible in his lifetime; that the only change to the railroad right-of-way of which he was aware occurred in 1937 when the Railroad bought a strip of land for construction of a ditch (the deed for that transaction made reference to the Railroad's 50-foot right-of-way); that, over the years, he had patched portions of the old fence to serve as a pasture fence for his livestock; that, about 20 years ago, he first built a fence located between the remnants of the old fence and the track; that he nailed fence wire to the Railroad's telegraph poles before they were removed; and that in 1980 he built a new fence (for a distance of two miles) between the track and a ditch dug by the Railroad. He also testified that he had erected an electric fence along a portion of property between the track and a ditch (an area that he acknowledged the Railroad had claimed all of his life), and that for 30 years his livestock had grazed the area that the Railroad claimed.

Brown testified that in the 1950's and 1960's he had written letters to the Railroad, complaining of the disrepair of the fences. However, he presented no evidence to corroborate that testimony. There was evidence, however, that in 1980, when the Railroad requested that he remove certain fencing, Brown wrote the Railroad: "My records indicate that you do not own a right-of-way where the railroad is located. Please move this railroad and discontinue the unauthorized use of my property."

Judge Randall Cole entered the following order:

"It is the judgment of the court that the evidence raises no genuine issue of material fact regarding the right-of-way as claimed by the Railroad. It is uncontroverted that the Railroad has claimed a right-of-way of 50 feet on each side of the centerline of the track through Brown's property since 1914, when the valuation maps were drawn, and...