East Alabama Ry Co v. Doe Visscher

Decision Date13 April 1885
Citation5 S.Ct. 869,29 L.Ed. 136,114 U.S. 340
PartiesEAST ALABAMA RY. CO. v. DOE ex dem. VISSCHER and others
CourtU.S. Supreme Court

Edward Patterson and H. C. Semple, for plaintiff in error.

Sam. F. Rice, for defendants in error.

BLATCHFORD, J.

In November, 1880, the defendants in error brought an action of ejectment, in the circuit court of Chambers county, Alabama, against the East Alabama Railway Company, to recover premises described in the complaint as follows: 'A certain tract or parcel of land, being the railroad bed of the railroad, formerly known and called the 'East Alabama & Cincinnati Railroad,' from Lafayette to the county line of Lee county, together with all the land contiguous to said road-bed, on each side thereof, to the distance of 75 feet from the center thereof, said railroad being now known and called as the 'East Alabama Railway,' with the appurtenances, situate in the county of Chambers aforesaid.' Lafayette is in Chambers county, and Lee county lies south of Chambers. The suit was duly removed by the company into the circuit court of the United States for the Middle district of Alabama. It was tried before a jury, in December, 1881, on a suggestion that the company had been in adverse possession of the premises for more than three years before the bringing of the suit, and had made permanent and valuable improvements by building a railroad thereon; and on the plea of not guilty. The jury found for the plaintiffs 'for all the property described in the complaint,' and assessed their damages at $3,963.40, and there was a judgment accordingly. The company brings a writ of error.

The bill of exceptions sets forth all the evidence in the cause. The following are all the facts which it is needful to state: The Lafayette Branch Railroad Company was incorporated by the legislature of Alabama, February 7, 1848, to construct a railroad from Lafayette to intersect or connect with the Montgomery & West Point Railroad at some suitable point between Chehaw and West Point. By an amendatory act of April 9, 1854, the company was authorized to extend its road beyond Lafayette in the direction of the Tennessee river, and to connect the same with any railroad built, or being built, or to be built, so as to connect with some point on the Tennessee river. By an amendatory act of January 25, 1860, its name was changed to the Opelika & Oxford Railroad Company, and it was authorized to connect its road with the Alabama & Tennessee River Railroad at or near Oxford, Calhoun county. The companies were successively organized. In 1861 one Richards was elected president. The Opelika & Oxford Company acquired the right of way through the lands of all the proprietors of the soil, from a point on the Montgomery & West Point Railroad, about two miles northerly from Opelika, in Lee county, to Lafayette, by deeds from all the proprietors, (save in one case.) The deeds, except in the description of the land through which the road was to pass, were all in the form of the following one:

'MARY F. MCLEMORE TO OPELIKA & OXFORD R. R. CO.

'Alabama, Chambers County: This indenture, made this thirty-first day of August, in the year of our Lord one thousand eight hundred and sixty, between Mary McLemore, of Chambers county, of the one part, and the Opelika & Oxford R. R. Company, of the other part, witnesseth: That the said Mary F.McLemore, for and in consideration of the sum of one dollar to her in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth give, F. McLemore, for and in consideration said railroad company, and their successors and assigns, the right of was over which to pass at all times by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad with requisite number of tracks; and to this end the limit of said right of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed, and to extend in length through the whole tract of land owned and claimed by said Mary F. McLemore, and known as the north half of section 23, township 22, of range 26, situated, lying, and being in Chambers county, adjoining lands of James F. Dowdell, Evan G. Richards, and Nolan J. Wright, and running in such direction through said tract of land as the said Opelika & Oxford Railroad Company, by their engineers, shall think best suited for the purpose of locating and establishing their works; and connected with the said right of way, the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber on each side of said road as would, by falling on or striking the same, injure the rails or other parts of said road, together with all and singular the rights, members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in anywise appertaining, and, more especially, the right of way over the same; to have and to hold the same unto the said Opelika & Oxford R. R. Company, their successors and assigns, to their own proper use, benefit, and behoof forever, in fee-simple, upon condition, and it is expressly understood, that should the said railroad contemplated as aforesaid be not located and established on and along said strip, parcel, or tract of land described in the above and foregoing indenture, then said indenture is to be wholly null and void, and of no effect; and the said Mary F. McLemore, her heirs and assigns, will warrant and defend the title thereof unto the Opelika & Oxford Railroad Company, their successors and assigns, against the claims of all persons whatsoever. In witness whereof, the said Mary F. McLemore hath hereunto set her hand and seal the day and year first above written.

MARY F. McLEMORE.'

As to the excepted case, which related to a section of land, one mile square, in Chambers county, through which the road- bed sued for runs in that county, the company caused the same character of rights and right of way through that section of land, as was conveyed by the deeds referred to, to be condemned for its use under statute authority, and the sum assessed was finally paid to the owner. In 1860 the company employed engineers, who laid out and staked off the full right of way conveyed through all of the lands, and cut out the width through woods; and it made contracts with contractors for the grading and culverting of a railroad along the right of way, who built for it a great deal of such grading and culverting; and all the work done was done on the right of way thus staked out, but no other work was done on it except such culverting and grading, and this was not continuous through the whole line in Chambers county sued for, but there were several intervals where no work of grading and culverting was done; and the company was in the undisturbed possession of the whole of the right of way.

The company became embarrassed for want of means during the war, and ceased, before July, 1861, to do any work on the line, leaving it incomplete as to grading and culverting, and no work was done by it afterwards on the line. Richards, as late as 1863, removed, at a small expense to himself individually, some logs which had lodged in one of the culverts, to save the culvert and grading from injury, and he looked over the work from time to time. No meeting of the directors or stockholders was held after July, 1861, and no corporate act was done by either af er that date. The company was without means to prosecute the building of the road any further.

One Lockett and the firm of D. W. & J. G. Visscher were contractors, to whom the company was indebted for work on the line. Lockett recovered one judgment and the Visschers another against the company, October 26, 1866, in a court of the state, by service of process on Richards, as president; the former for $14,457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers county, November 7, 1866, and levied on that day, according to the return on each writ, on a house and lot, and also on 'the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, and all the appurtenances belonging to said railroad company, from Lafayette to the edge of Lee county, and also the surveying instruments belonging to said company.' The plaintiff's attorney stopped proceedings on those executions on the twelfth of April, 1867. A second execution was issued on each judgment to said sheriff, May 8, 1867, and levied on that day, under the Lockett execution, according to the return thereon, on a house and lot, and also on 'the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, to the edge of Lee county, and also all the surveying instruments belonging to said company;' and under the other execution, according to the return thereon, on the same property, omitting the words 'the right of way has been obtained, to.' After a sale, the sheriff executed the following deed to the purchasers:

'This indenture, made and entered into this third day of June, 1867, between R. J. Kellam, sheriff of the county of Chambers, in the state of Alabama, of the one part, and D. W. & J. G. Visscher and A. L. Woodward, of the other part, witnesseth: That whereas, on the twenty-sixth day of October, 1866, a judgment was duly rendered in the circuit court for the county of Chambers, in the state aforesaid, at the fall term of the said court, for the sum of twelve thousand three hundred and eighty-three dollars and costs, in favor of Abner M. Lockett, and one in favor of D. W. & J. G. Visscher for fourteen thousand four hundred and fifty-seven dollars and twenty-one cents, and against the Opelika & Oxford Railroad Company, on which said judgments there were issued by the clerk of the circuit...

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