Central of Georgia Ry. Co. v. Barnett

• Decision Date: 07 November 1929
• Docket Number: 4 Div. 404.
• Citation: 124 So. 868,220 Ala. 284
• Parties: CENTRAL OF GEORGIA RY. CO. v. BARNETT.
• Court: Alabama Supreme Court

124 So. 868

220 Ala. 284

CENTRAL OF GEORGIA RY. CO. v. BARNETT.

4 Div. 404.

Supreme Court of Alabama

November 7, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Action in trespass and trover by H. H. Barnett against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

G. L Comer and McDowell & McDowell, all of Eufaula, for appellant.

T. S Fraser, of Union Springs, and Rushton, Crenshaw & Rushton, of Montgomery, for appellee.

BROWN J.

The first count of the complaint is in trespass quare clausum fregit de bonis asportatis, and alleges that the defendant willfully, and without the consent of plaintiff, entered upon plaintiff's lands and took up and removed therefrom 750 feet of rails, 240 cross-ties, and 100 spikes, constituting a spur track leading from defendant's siding at Fitzpatrick, Ala., to a gin plant and seed house of the plaintiff, and used by him for shipping hay, cotton seed, and other products over defendant's line of railway.

The second count is in trespass quare clausum fregit for injury to plaintiff's lands, and the third in trover for the conversion of the rails, ties, and spikes.

Though only the general issue was pleaded, the defendant sought to justify under a license granting a right of way by W. F. Moss to the defendant on the 23d day of August, 1901, authorizing the construction of a spur track over the lands of said Moss to the gin plant of the Fitzpatrick Square Bale Gin Company, with condition "that should said spur track not be built or located on the portion of said tract of land herein conveyed for that purpose; or should said Fitzpatrick Square Bale Gin Company, and assigns, ever cease to operate the plant now owned by it as a gin mill, then all benefit from this deed shall cease and the right of way herein conveyed shall immediately revert to the grantors." There was no evidence showing or tending to show that the Fitzpatrick Square Bale Gin Company was still operating its plant, and the evidence was without dispute that the spur track in controversy was situated on the plaintiff's lands, that no part of it was located on the lands owned by Moss in 1901. Whether or not the track in question was constructed by the defendant or by plaintiff's predecessors in title was, under the evidence, a question for jury decision. The evidence was also without dispute that the defendant's agents and servants tore up and removed the track, under defendant's instructions and over the protest of the plaintiff; and for this reason the affirmative charge requested by the defendant was properly refused.

Charges 2, 3, 4, 7, 8, 10, and the two unnumbered charges, assumed that the spur track was laid by the defendant, and that defendant had a legal right to take up the track and remove it, and were invasive of the province of the jury. If the jury were reasonably satisfied frim the evidence that the defendant was guilty of trespass, as charged in the first and second counts of the complaint, plaintiff were entitled to recover at least nominal damages, though he suffered no material injury, and charges 6 and 9 were, for this reason, well refused. Charge 5 misplaced the burden of proof and was refused without error.

Evidence offered by the plaintiff, going to show the relation of the spur track to plaintiff's business, and the uses to which...