East Tennessee, V. & G. Ry. Co. v. Telford's Ex'rs

• Decision Date: 30 October 1890
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. TELFORD'S EX'RS.
• Court: Tennessee Supreme Court

14 S.W. 776

89 Tenn. 293

EAST TENNESSEE, V. & G. RY. CO. v. TELFORD'S EX'RS.

Supreme Court of Tennessee.

October 30, 1890

Appeal from circuit court, Washington county; A. J. BROWN, Judge.

Wm. M Baxter and Kirkpatrick & Williams, for plaintiff in error.

Hacker Deaderick & Epps, for defendants in error.

LURTON J.

Action for damages for land alleged to have been appropriated by plaintiff in error upon which to construct a siding parallel with the main track. The line of railway operated by appellant was constructed more than 30 years since, over the lands of G. W. Telford, and has been continually operated. Very recently the railway company have put in a side track over the same lands, and within 30 feet of the main track. The executors of Telford, in whom is vested the legal title bring this action as for an additional appropriation. The company depends upon this ground that this additional track has been put upon their own right of way. No conveyance was ever made by Telford of any right of way, and no condemnation had; the railway company claiming a right of way of 100 feet on each side of center of track, under the provision of section 23 of their charter, which is in these words "In the absence of any contract with the said company in relation to land through which the said road may pass, signed by the owner thereof or his agent, or any claimant or person in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the purpose of said road, and no longer unless the persons owning the said land at the time that part of the road which may be on said land when finished, or those claiming under him, her, or them, shall apply for an assessment for the value of said land, as hereinbefore directed, within five years next after that part of said road was finished. And in case the said owners, or those claiming under them, shall not apply for such assessment within five years next after the said part was finished, they shall be forever barred from recovering the said land, or having any assessment or compensation therefor," etc. Act Jan. 27, 1848. No action for an assessment of damages was ever brought by Telford, and there is no evidence that he was ever compensated. The constitutionality of this provision for the taking of private lands for a public use cannot be impugned. An ample remedy is given the owner to recover compensation, and this remedy is exclusive. This point has been expressly ruled in a case involving a similar charter. Simms v. Railroad, 12 Heisk. 621.

Defendants in error insist that the land not actually occupied by the railway track and embankments has been continuously cultivated by Telford since the construction of the road, and that for 15 years a part has been fenced in with his other lands, and that this has been under a claim of right, and therefore adverse, and that this adverse holding has operated to defeat and extinguish any title or easement beyond that actually used by the company. The railway company, on the other hand, contends that it only acquired an easement,...