Day v. Louisville, New Orleans & Texas Railway Co.

• Decision Date: 07 March 1892
• Citation: 69 Miss. 589,11 So. 25
• Parties: J. J. DAY v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO
• Court: Mississippi Supreme Court

11 So. 25

69 Miss. 589

J. J. DAY v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO

Supreme Court of Mississippi

March 7, 1892

October 1891

FROM the chancery court of Wilkinson county, HON. CLAUDE PINTARD Chancellor.

The Louisville, New Orleans & Texas Railway Company exhibited this bill, seeking to enjoin the appellant, J. J. Day, from prosecuting an ejectment suit brought by him against it to recover a certain strip of land claimed by the company for its right of way, and on which its track is located; and also to enjoin the said Day from prosecuting an action of trespass against complainant for cutting certain trees on land adjacent to the right of way. The said ejectment suit was before this court at the October term, 1889, on appeal of the railway company, and the judgment was reversed. See Railway Company v. Day, 67 Miss. 227. The facts will be found fully reported in that case. It was there held that J. J. Day was estopped, upon the facts appearing in that record, to controvert the title conveyed to the railway company by his father, David Day, since, without disclosing his title, he had suffered the railway company to condemn the right of way, and to litigate therefor with his father, and subsequently to receive from the latter a deed. It was not shown in the ejectment suit that the deed to the son had been recorded before the company received its deed, and, as to this, the court, in its opinion in that case, used the following language:

"He [J. J. Day] was certainly not owner until it [the land] was conveyed to him in 1886, and, if it was then conveyed to him and the deed pocketed, he could not be treated as owner against the defendant, and if his conveyance was recorded when the company purchased of his father, January 21, 1887, a grave question would arise as to its efficacy under the history of the case."

The testimony taken in this injunction suit does not vary materially from that in the action of ejectment, except that it is now disclosed that the deed to J. J. Day from his father was recorded when the company purchased. There was also some further evidence tending to weaken the case made by the complainant to establish the estoppel, but it is not necessary to set this out; nor is it necessary to state the facts or the arguments of counsel in reference to the main point of the controversy, since they appear in the former report.

Reversed.

D. C Bramlett, for appellant.

Neither the bill nor the evidence shows that the trees for the cutting of which the trespass suit was brought, were sufficiently near the track to fall upon or obstruct it. It devolved upon plaintiff to establish a defense to the action. The facts alleged and proved would not constitute any defense.

Murray F. Smith and Mayes & Harris, for app...