Hendrix v. Southern Ry. Co.

• Decision Date: 30 May 1901
• Citation: 130 Ala. 205,30 So. 596
• Parties: HENDRIX v. SOUTHERN RY. CO. [1]
• Court: Alabama Supreme Court

30 So. 596

130 Ala. 205

HENDRIX v. SOUTHERN RY. CO. ^[1]

Supreme Court of Alabama

May 30, 1901

Appeal from chancery court, Cherokee county; J. R. Dowdell Chancellor.

Bill by the Southern Railway Company against W. W. Hendrix. From a decree in favor of plaintiff, defendant appeals. Affirmed.

The bill in this case was filed on January 19, 1897, by the appellee, the Southern Railway Company, against the appellant, W. W. Hendrix, to enjoin an action of ejectment instituted by the defendant in the circuit court of Cherokee county against the complainant. It was averred in the bill that in 1886 the complainant, W. W. Hendrix, and his wife executed and delivered to the Rome & Decatur Railroad Company a deed to the right of way over certain lands owned by said W. W. Hendrix, and which he occupied as a homestead; that this deed was signed by W. W. Hendrix and his wife, but was not acknowledged by the wife separate and apart from the husband; that the property described in the deed was a right of way which was intended to be occupied by said railroad that subsequent to the execution of the deed, the route or course of the railroad which was being built by the Rome &amp Decatur Railroad was changed, and said railroad company entered upon other portions of the lands owned and occupied by the defendant, Hendrix, and cleared off a right of way upon said lands, and constructed its road over the same; that in so doing it expended large sums of money and incurred great expense, and that all of this was done with the knowledge and consent of said Hendrix, who resided near by and saw the work daily as it progressed, but he interposed no objections thereto. It was then also averred in said bill that the Rome & Decatur Railroad Company, after having entered upon the lands of the defendant, was placed in the hands of the receiver, and under the order of the court was sold, and purchased by the East Tennessee, Virginia & Georgia Railroad Company; that this latter company was afterwards placed in the hands of a receiver, and by order of the court the branch of said road which passed over the lands of the defendant was sold, and at said sale the present complainant became the purchaser thereof, and has ever since owned and operated said road; that the said road has been, by each of the companies and receivers thereof and the complainant operated continuously over the lands of the defendant, along the road so constructed over said lands, which fact was well known to the defendant, and that valuable improvements have been made on the track and right of way of the complainant and those through whom it claims, and that the complainant has expended large sums of money in repairing and improving the track and the right of way over said lands, all of which has been done with the knowledge and acquiescence of the defendant. It was then averred that on December 6, 1896, the respondent brought an action of ejectment to recover from the complainant said lands, which were so used and occupied by it as a right of way. The prayer of the bill was that an injunction be issued restraining the respondent from the further prosecution of the ejectment suit. The defendant filed an answer, in which he denied that the complainant and each of said purchasers had made valuable improvements over the track and right of way, and expended large sums of money, as alleged in the bill, and further denied that he had consented to the use by the Rome & Decatur Railroad Company for a right of way over other lands than those described in the deed executed by him to said company. The fact of the present ownership of the railroad by the complainant was admitted in the bill. The facts of the case are shown by the evidence, and are sufficiently set forth in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree granting the relief prayed for by the complaint. This decree was in words and figures as follows: "Upon due consideration thereof, in the opinion of the court the complainant is entitled to the relief sought in his bill as amended. It is therefore ordered, adjudged, and decreed that the temporary injunction heretofore granted in this cause be, and the same is hereby, made perpetual as to the following described property, to wit: A strip of land fifty feet wide, measuring twenty-five feet each way from the center of the railroad track of said Southern Railway Company, through the N.E. 1/4 of the N.E. 1/4 of section 5, and N.W. 1/4 of N.W. 1/4 of section 4, township 10, range 9 east, in Cherokee county, Alabama, the same being now in the use and occupancy of the Southern Railway Company as a right of way in the operation of its said railroad, and which is described in complainant's bill. It is further ordered and decreed that the respondent, W. W. Hendrix, pay the costs of this suit,...