Farrar v. Nashville, C. & St. L. Ry.

Decision Date14 March 1931
Citation36 S.W.2d 95
PartiesFARRAR v. NASHVILLE, C. & ST. L. RY.
CourtTennessee Supreme Court

Sam Tigert, of Fayetteville, for complainant.

W. B. Lamb, Jr., of Fayetteville, and Fitzgerald Hall and Frank Slemons, both of Nashville, for defendant.

CHAMBLISS, J.

Upon abandonment of a branch of its railway lines extending through Lincoln county, the defendant removed its rails and cross-ties, and also executed a deed conveying two small lots of land adjacent to its right of way to one J. C. Cerdy. Complainant sets up in his bill that he is the owner of the lands out of which the lots and a portion of the railway's right of way were originally carved, and seeks (1) to recover the ties and rails removed, or their value; and (2) to have canceled as a cloud the conveyance to Cerdy.

Complainant's theory with respect to the ties and rails is that they were fixtures which, if removable at all, could be removed only prior to the abandonment of the right of way, and that an attempt to quitclaim to the county the right of way prior to the removal of the ties and rails, despite the rejection by the county of the quitclaim, constituted an abandonment by the defendant of the right of way, that title reverted to complainant, and all right of removal was lost.

The insistence with respect to the two lots is that the conveyance thereof to the railway, made thirty years before to a predecessor in title, had been so conditioned with respect to use that a reversion of the title took place by reason of the failure to devote the property to the use designated and to construct improvements stipulated for thereon.

The chancellor sustained a demurrer to the bill in so far as it set up rights to the ties and rails, but overruled the demurrer to that part of the bill which sought to cancel the conveyance of the lots. Both complainant and defendant railway have appealed. Clardy, who was made a defendant, did not perfect an appeal, and it is said here for Farrar that the decree below is final as to the issue in which he was involved. But it is quite apparent that the railway had an interest as the grantor to Clardy, and its appeal brings up the whole case.

Conceding, but not deciding, that ties and rails laid by a railroad along a right of way become at least quasi fixtures, we think there can be little doubt that, regardless of the exact nature of the title held by the railroad to the land used as a right of way, whether absolute, or as an easement, or of the manner of its acquisition, the right to remove ties and rails placed thereon is clear, prior to complete abandonment of the land for railway purposes. The claim that such abandonment had taken place is rested on the attempted execution of a quitclaim to the county.

Was this attempt to quitclaim to the county, not accepted and therefore without legal delivery, such an abandonment as to preclude subsequent removal of the ties and rails? Not only was this quitclaim not a completed transfer of title, but it appears that the instrument contained on its face an express reservation of the right to remove the ties and rails. No such lapse of time is alleged to have taken place as in itself to support a presumption of abandonment. The case for complainant appears to be rested, as before stated, on the effect to be given the attempt to quitclaim to the county.

We are constrained to agree with the learned chancellor that this quitclaim cannot be given the effect contended for by complainant, first, because, even if quasi fixtures, they come within the rule of intention well recognized in this state. In the recent case of Savage & Co. v. Mayfield, 157 Tenn. 676, 11 S.W.(2d) 855, 856, this court reaffirmed the rule announced by Cooper, J., in Cannon v. Hare, 1 Tenn. Ch. 22, and quoted with approval from the opinion by Mr. Justice Neil in Bank & Trust Co. v. Wolf Co., 114 Tenn. 270, 86 S. W. 310, that "the rights of the parties to fixtures and buildings depend, not on the manner in which they are attached to the freehold, but upon the character of the parties, the intention in erecting the improvements, and the uses to which they are put." The distinction recognized in Savage & Co. v. Mayfield, supra, is applicable here, between erections on land, "for a purpose which contemplates the use thereof on the property in pursuance of the purposes of the possession only, and those made by an owner under circumstances which imply permanency."

Whatever the character of the title held by a railroad company to its right of way, its ties and rails are placed thereon "in pursuance of the purposes of the possession only." The nature of these quasi fixtures is such as to preclude the idea that they are placed with the intention that on abandonment of the possession for railway purposes, they are to remain and inure to the use and benefit of the freehold. They are not susceptible of use as fixtures except for railway purposes. Being in their very nature limited to use by the railway, certainly no intention can be imputed of a purpose to affix them permanently to the freehold, and allow them to remain where and when they will not be susceptible of use as such. While no case in this state is cited, the great weight of authority recognizes the right of a railway company, on relinquishment or abandonment of a right of way, to remove the rails and ties. Mr. Elliott, in his Second Edition, vol. 2, p. 637, thus states the rule:

"The presumption is that rails and similar structures placed by a Railroad Company upon land taken by it for a right-of-way, are affixed to the land with the manifest intention to use them in the operation of the railroad, and hence are not to be regarded as fixtures forming a part of the real estate."

In Wiggins Ferry Co. v. Ohio, etc., Ry....

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