Elyton Land Co. v. South & North Alabama R. Co.

• Decision Date: 24 November 1891
• Citation: 95 Ala. 631,10 So. 270
• Parties: ELYTON LAND CO. v. SOUTH & NORTH ALA. R. CO.
• Court: Alabama Supreme Court

10 So. 270

95 Ala. 631

ELYTON LAND CO. v. SOUTH & NORTH ALA. R. CO.

Supreme Court of Alabama

November 24, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Ejectment by the Elyton Land Company against the South & North Alabama Railroad Company to recover a strip of land used by defendant as a right of way in the city of Birmingham, with other lands. Trial was had by the court without a jury, and judgment entered for plaintiff, except for the strip in question, which was adjudged to defendant, and plaintiff appeals. Affirmed.

Alex. T. London, for appellant.

Hewitt, Walker & Porter, for appellee.

WALKER J.

The land involved in this suit is included in the description of the strips of land lying on either side of the right of way of the Alabama & Chattanooga Railroad Company, which, by the terms of the contract of April 21, 1871, between the Elyton Land Company, the Alabama & Chattanooga Railroad Company, and the South & North Alabama Railroad Company, were to be held by the Elyton Land Company forever, as a perpetual right of way for all railroad companies doing business in and through the city of Birmingham. That contract was before this court in the case of the Alabama G. S. R. Co. v. South & N. A R. Co., 84 Ala. 570, 3 South. Rep. 286, and the extent of the right conferred by its terms up on the South & North Alabama Railroad Company in the right of way of the Alabama &amp Chattanooga Railroad Company was there determined. In March, 1881 the Elyton Land Company filed its bill in chancery against the South & North Alabama Railroad Company and the Alabama Great Southern Railroad Company, alleging, in substance, the existence of the contract above referred to, the non-compliance by the Alabama Great Southern Railroad Company as the successor of the Alabama & Chattanooga Railroad Company with the conditions of said agreement to be performed by the former of these two companies, and the partial compliance by the South & North Alabama Railroad Company with the conditions to be performed by it under said contract, so as to entitle that company to a portion of the lands which it was to receive under the contract. The complainant in that bill sought thereby to have revoked and declared forfeited the benefits stipulated for by said agreement in favor of the Alabama Great Southern Railroad Company, and of all other railroad companies, except the South & North Alabama Railroad Company. Decrees pro confesso were entered against both the defendants. A final decree was rendered, in which it was recited that "it appears from the allegations of the bill and the admissions of complainant in open court that the South & North Alabama Railroad Company has complied substantially with the terms and conditions of the agreement of April 21, 1871, and has agreed with the complainant on the boundaries of the lots or parcels of land to which the South & North Alabama Railroad Company is entitled under said agreement, being part and parcel of the lands therein described; and as to the lands so designated and set apart to the South & North Alabama Railroad Company, and as to all other rights acquired for its use, by said South & North Alabama Railroad Company under said agreement, the said agreement remains unaffected by this decree." It was decreed that said agreement be revoked, annulled, and declared void and of no effect as to the Alabama & Chattanooga Railroad Company and its successor, the Alabama Great Southern Railroad Company, and as to all other railroad companies and all other persons; but the decree expressly reserved the right of the South & North Alabama Railroad Company for its own use under said agreement. The conclusive effect of this decree upon the rights of the Alabama Great Southern Railroad Company was fully recognized in the case above cited. The result of the decree was to exclude all claim by that company upon any lands of the Elyton Land Company covered by the terms of the contract in question, and to leave the interest of the South & North Alabama Railroad Company in the strip of land involved in this suit undiminished, and, indeed, augmented, certainly to the extent of the exclusion of the Alabama Great Southern Railroad Company from participation in the benefits of the contract. The decree just referred to was followed by a deed, executed in April, 1882, whereby the Elyton Land Company conveyed to the South & North Alabama Railroad Company certain lands, which were accepted by the latter company as the residue of the lands to which it was entitled under the contract of April 21, 1871. It was again recited in this deed that the Elyton Land Company claimed that the Alabama & Chattanooga Railroad Company, and all other railroad companies, except the South & North Alabama Railroad Company, had failed to comply with the terms and conditions of said original contract or agreement, and that said agreement was revoked and annulled as to all other companies or persons, except the South & North Alabama Railroad Company. It was expressly stipulated in that deed that the right of the grantee therein, acquired by said original agreement, to the strip of land 35 feet wide, a portion of which is involved in this suit, should remain in full force and effect, but that the right of way over said strip was abrogated as to all other railroad companies.

It is contended for the appellant that the agreement of April 21 1871, together with the maps of its property made and published at that time, effected a dedication of the strips of land, a portion of which is involved in this suit, for the purposes stated in the agreement, and that this dedication was irrevocable, and could not be affected by the decree and the deed of 1882, above referred to. It is further contended that the erection of the depot on the strip in controversy is a misuser and a diversion of it from the purposes to which it was devoted by the dedication, which entitle the plaintiff to maintain ejectment for the recovery of the property. The consideration that railroads are devoted to public uses affords the justification for the exercise of the power of eminent domain for the acquisition of private property for railroad purposes. But the land held by a railroad company for the purposes of its enterprise, whether acquired by condemnation proceedings or by purchase from the owners, is, so far as the right of property is concerned, private property. The incidents of private ownership attach to it. The title is in no manner vested in the public or in any part of the public as such. The title of the railroad company is as exclusive as that of any sole grantee in a conveyance of land. It must use the property for the public purposes for which it was acquired under public authority. Though the property must be so used, still the ownership is private, and the public do not share in such ownership. The public are entitled to use the property, but they use it as the property of the company, and the company is entitled to compensation for its use. The law secures to the company the exclusive possession and dominion of the property, and only requires that it be devoted to the purposes of public use and convenience, to subserve which its acquisition was authorized. Land set apart for a railroad right of way, if accepted by the railroad company, is taken as the company's private property, and for its individual profit, though such company, by taking the property, charges itself with a public duty as to the use to which the property is to be devoted. The acceptance by the company is in its own behalf, and cannot properly be said to be in behalf of the public. A dedication is "an appropriation of land to some public use made by the owner of the fee, and accepted for such use by or on behalf of the public." The public is treated as the grantee, and the gift inures immediately to the public. 5 Amer. & Eng. Enc. Law, 395, 399; Steele v. Sullivan, 70 Ala. 589. Dedication is not a mode of conferring a private property right in land. The only cases, not controlled by special statutory provisions on the subject, in which we have found the donation of land for railroad purposes spoken of as a dedication, involved only the assertion of a claim to the property in question by the railroad company itself; and in such cases the claim was either disallowed or was rested, not upon a common-law dedication, but upon an adverse possession by the railroad company, or upon a state of facts raising an estoppel in pais against the holder of the legal title, which would have precluded him from asserting his title against any one who had occupied and improved the land with his knowledge and consent, under similar circumstances. Morgan v. Railroad Co., 96 U.S. 716; Railway Co. v. Sutor, 56 Tex. 496; Daniels v. Railroad Co., 35 Iowa, 130; Forney v. Calhoun Co., 86 Ala. 463, 5 South. Rep. 750. It seems that when the act to be relied upon as the acceptance of a proposed appropriation of property is to be done, not by the public or in behalf of the public, but by an individual or by a private corporation, intendings to take the property in its own behalf for use in a business enterprise to be prosecuted for its own profit, and the property is to be acquired as private property and for private gain, so that the public are not to share in the ownership or in the benefits of ownership, but the new private proprietor, by taking the property for the purposes in view, only charges itself with the duty of using the property for public purposes on receiving compensation for such use, then such appropriation of the property, to be binding upon the holder of the legal title, must be effected by his contract, grant, or conveyance, unless he has precluded himself from asserting his title as the result of a...