Galloway v. Doe ex dem. Henderson

• Decision Date: 10 February 1903
• Citation: 34 So. 957,136 Ala. 315
• Parties: GALLOWAY ET AL. v. DOE, EX DEM. HENDERSON ET AL.
• Court: Alabama Supreme Court

34 So. 957

136 Ala. 315

GALLOWAY ET AL. v. DOE, EX DEM. HENDERSON ET AL.

Supreme Court of Alabama

February 10, 1903

Appeal from City Court of Etowah; John H. Disque, Judge.

Ejectment by John Doe, on demise of the Tennessee & Coosa Railroad Company, Anna J. Henderson, lessee, against T. C. Galloway and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Exhibits A and B to the bill of exceptions, referred to in the opinion, were maps certified to by the Acting Commissioner of the General Land Office, on which the land in controversy was shown; the one being "Map of the Tennessee & Coosa Railroad, drawn by Jos. R. Abrahams, Chief Engineer," and the other purporting to show the limits of the grant by the act of June 3, 1856, to aid in the construction of the Tennessee & Coosa Railroad, certified to by said Acting Commissioner as being "a true and literal exemplification of the original prepared by and now filed in this office." Exhibit C was an "Adjustment list of lands granted to the Coosa and Tennessee R. R. in the State of Alabama, under Act of June 3rd, 1856. Six miles conflicting with A. & C. R. R.," which was certified by the Commissioner of General Land Office as being a "true and literal exemplification of the list on file in this office." By this list the land in suit was shown to be vacant, and subject to grant. The other evidence sufficiently appears from the opinion. At the conclusion of the evidence the court, at plaintiff's request, gave to the jury the following written charge: "The court charges the jury that, if they believe all the evidence in this case, they must find in favor of the plaintiff for an undivided one-half interest in the lands sued for upon the demise laid in the Tennessee & Coosa Railroad Company." To the giving of this charge the defendants excepted, and, verdict and judgment being rendered accordingly, now on appeal, assign its giving as error.

Burnett Hood & Murphree and Dortch & Martin, for appellants.

Amos E Goodhue, for appellee.

HARALSON J.

1. This suit has relation to lands granted by Congress approved the 3d of June, 1856 (11 Stat. 17) under "An act granting public lands in alternate sections to the state of Alabama to aid in the construction of certain railroads in said state," the first section of which refers to the roads for the construction of which said lands were granted, viz to roads "from the Tennessee river at or near Gunter's Landing to Gadsden, on the Coosa river; from Gadsden, to connect with the Georgia line of railroads, through Chatooga, Wills and Lookout valleys," etc.; and the lands granted were to roads to be constructed severally. The quantity of land so granted was specified in the fourth section of the act to be, "not exceeding 120 sections for each of said roads and included within a continuous length of 20 miles of each of said roads," to be sold, "when the Governor of said state shall certify to the Secretary of the Interior that any 20 continuous miles of any of said roads is completed;" then, another quantity of lands, not exceeding 120 sections for each of said roads having 20 continuous miles etc., as provided for the first 20 miles, and so, from time to time until said roads were completed. But it was provided, "If any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States." The lands granted were "every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads," with the proviso, that if any of those odd sections in the six-mile limit had before been sold or disposed of by the government, other lands of equal quantity might be selected in a manner prescribed, from lands of the United States nearest to the line of sections above specified, but in no case further than fifteen miles from the lines of said roads. It was also provided, that the lands granted for and on account of said roads severally, should be exclusively applied in construction of the road for and on account of which such lands were granted, and should be disposed of only as the work progressed, and the same should be applied to no other purpose whatsoever.

2. The Legislature by act approved January 20, 1858, accepted the trust conferred, with the restrictions and upon the terms and conditions contained in said act of Congress. These proposed roads came on to be incorporated, under the laws of the state, one of them from Gunter's Landing to Gadsden on the Coosa river, as the Tennessee & Coosa Railroad Company, and others as the Northeast & Southwest Alabama Railroad Company and the Wills Valley Railroad Company, were later consolidated and amalgamated, by authority of the Legislature, into a corporation known as the Alabama & Chattanooga Railroad Company. Acts 1868, p. 207; Swann & Billups v. Lindsey, 70 Ala. 507.

In said act of the Legislature accepting the trust of the general government as to these lands it was provided, "that so much of the lands, interests, rights, franchises, powers and privileges as are or may be granted and conferred in pursuance of said act of Congress aforesaid, to aid in the construction of a railroad from the Tennessee river, at or near Gunter's Landing, to Gadsden on the Coosa river, are hereby disposed of, granted to, conferred upon and invested in the Tennessee and Coosa Railroad Company, a body corporate, created and existing under the laws of the state of Alabama, for the purposes and under the restrictions specified in said act of Congress," etc.

3. It seems to be conceded on each side, that the lands in question were not included in the first 120 sections of the grant for the benefit of the Tennessee & Coosa Railroad; that they were within the conflicting primary granted limits of that road and the Alabama & Chattanooga Railroad, and that they were opposite to that part of the Tennessee & Coosa Road, which lies between Gadsden and Littleton, which was completed to the latter point in 1889. These two roads then, as admitted, held undivided moieties of the lands granted to which they were equally entitled. In McCarver v. Herzberg, 120 Ala. 524, 25 So. 3, in construction of this statute, it was said: "In construing this, and similar acts of Congress, granting public lands in aid of the construction of railroads, it has become thoroughly well settled that when, by the same statute, several grants are made for the benefit of different railroads, neither priority of location, nor priority of construction gives priority of right; but where two or more roads, legally located in pursuance of the act, cross each other, or approach each other so nearly that the limits of the primary grant for the benefit of each overlap, the grant is of equal undivided shares for the benefit of each road;" citing authorities. It was also said, "By the acceptance of the grant, the state became the trustee of the United States, and as such its application and power of disposition of the lands was limited to the purposes expressed in the act creating the trust. The act of Congress was a law, as well as a grant, and any application or disposition of the lands by the state, in violation of the terms of the act was absolutely void." Swann & Billups v. Lindsey, 70 Ala. 507; Same v. Miller, 82 Ala. 530, 1 So. 65.

4. The title of the land in question was originally in the United States. By said act of 3d June, 1856, it was vested in the state of Alabama as trustee. Upon the completion of...