Central of Georgia Ry. Co. v. Faulkner

• Decision Date: 10 November 1927
• Docket Number: 7 Div. 767
• Citation: 114 So. 686,217 Ala. 82
• Parties: CENTRAL OF GEORGIA RY. CO. et al. v. FAULKNER.
• Court: Alabama Supreme Court

114 So. 686

217 Ala. 82

CENTRAL OF GEORGIA RY. CO. et al. v. FAULKNER.

7 Div. 767

Supreme Court of Alabama

November 10, 1927

Rehearing Denied Dec. 22, 1927

Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.

Action for damages by J.B. Faulkner against the Central of Georgia Railway Company and J.A. Kreis. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Nesbit & Sadler, of Birmingham, and L.H. Ellis, of Columbiana, for appellants.

Leeper Wallace & Saxon, of Columbiana, and H.M. Abercrombie, of Birmingham, for appellee.

BOULDIN J.

The action is in damages for injury to plaintiff's premises by the obstruction or destruction of an alleged public road. Plaintiff's residence lot fronted some 140 yards on the railroad right of way. A roadway over the unoccupied portion of the right of way passed in front of plaintiff's premises. The defendant company enlarged or widened its fill or embankment to cover the entire right of way, thus covering up and destroying this roadway. Damages are claimed for cutting off the means of ingress and egress to plaintiff's property, for dumping rock and dirt over the line destroying plaintiff's fence, and for diverting the flow of surface waters upon plaintiff's premises.

The main issue of fact submitted to the jury was whether this was a public road. Some evidence tended to show that this road known as Sterrett Cemetery road, existed and was in use by the public as far back as 1880, prior to the location and construction of the railroad in 1887. Without material conflict the evidence further showed that this road crossed the right of way of the defendant company twice, on the east and on the west of plaintiff's premises, and that defendant maintained crossings over its tracks at these points with the usual crossing signs; that the public had used this road continuously for more than 20 years, probably more than 40 years. There was evidence that the road was worked by the overseer of public roads from time to time. Some testimony, negative in character, tended to controvert this feature of plaintiff's evidence.

As for the affirmative charge requested by defendant, its refusal may be justified upon evidence sufficient to make a jury question as to a dominant easement in favor of the public at the time defendant acquired its right of way, recognized and acquiesced in by the maintenance of public road crossings.

If, as argued, a highway by prescription depended upon actual notice to the railway company of a public user as matter of right and not in recognition of a superior right in defendant, the evidence afforded ground for inference of such actual notice. The affirmative charge was not due defendant if we concede the legal premises so argued.

The court, in his oral charge, instructed the jury:

" 'Where the public uses a road for 20 years or more, claiming the right to do so, regardless of the rights of the owners of the land, or the owner of any other easement in the land, if that is continuous, uninterrupted, under some claim of right to use it as a public highway, if that continues for 20 years or more, it ripens into a right, a legal right to use it as a public highway, and would be a public road, just the same as if it had been established by the authorized authorities; but, if the public merely used it by permission of the owner, then it would not be a public road any longer than the owner of the property, or the person having the right to the possession of it, permitted it to be done. *** But, if the public uses the right of way or road without regard to the right of the other party interested, and claiming the right to do so during 20 years or more, and that is uninterrupted and continuous, it would ripen into a legal right to continue to use it as a public road.' "

These instructions are assigned for error. The point raised seems to be that no highway by prescription is created by a continuous user under claim of right, unless it be affirmatively shown that notice of the adverse or hostile claim of the public was brought home to the defendant.

The rule is declared that the continued use of the unoccupied portion of a railroad right of way by the owner of the fee, or by a third person placing structures thereon, is presumed to be in recognition of the superior easement of the railway company, merely permissive, and such possession does not become adverse until notice is brought home to the railway company of a hostile claim. The statute of limitations does not begin to run until such notice appears. Alexander City Co. v. Central of Ga. Ry. Co., 182 Ala. 516, 62 So. 745; A.G.S.R.R. Co. v. McWhorter, 202 Ala. 455, 80 So. 839; Seaboard Air Line Ry. Co. v. Banks, 207 Ala. 194, 92 So. 117.

As a general rule it...