Hope v. Norfolk & W. R. Co.

• Decision Date: 07 August 1884
• Citation: 79 Va. 283
• Parties: HOPE v. NORFOLK AND WESTERN RAILROAD COMPANY.
• Court: Virginia Supreme Court

79 Va. 283

HOPE v. NORFOLK AND WESTERN RAILROAD COMPANY.

Supreme Court of Appeals of Virginia.

August 7, 1884

Error to judgment of the circuit court of Washington county, in an action of unlawful detainer brought therein by James C. Hope against the Norfolk and Western railroad company for the recovery of a strip of land in sad county, eighty feet in width and containing nine acres, and the same upon which the company's railroad is located, the possession whereof was alleged to be unlawfully withheld by the said company from the plaintiff.

The agreed facts are substantially as follows: The defendant company is the successor of the Atlantic, Mississippi and Ohio railroad company, which was the successor of the Virginia and Tennessee railroad company. In the year 1848 James Clark departed this life, leaving a will, by which he devised a certain tract of land in the county of Washington to Jane C. Clark, his wife, for life, remainder in fee to James C. Hope, the plaintiff in error. In 1851 Mrs. Clark the widow, conveyed to the Virginia and Tennessee railroad company all her right, title and interest in so much of the land as might be necessary for the construction of its road through the same. The land so conveyed is the land now in controversy. Between the years 1851 and 1856 the company constructed its road through the land, and it and its successors have since remained in possession of the land in controversy. In the year 1881 the life-tenant died, less than three years before this suit was brought. No steps were ever taken to condemn the land, the only interest acquired being such as was conveyed by the deed of the life-tenant.

The defendant appeared and pleaded the general issue and also the act of limitations. And upon the facts agreed, the case having been submitted for determination to the court without a jury, judgment was rendered for the defendant, to which judgment a writ of error was awarded by one of the judges of this court.

White & Buchanan, for the plaintiff in error.

Fulkerson & Page, for the defendant in error.

1. The entry of the Virginia and Tennessee railroad company was lawful.

The statute provides that no company incorporated for a work of internal improvement shall construct its road through any land without the consent of the " owner or possessor." Code of 1849, chap. 56, § 4.

The same statute, section 6, provides, that if the company cannot agree on the terms of purchase with " those entitled to lands wanted for the purposes of the company," five disinterested freeholders shall be appointed by the court to ascertain a just compensation for such land. And section 7 of said chapter provides, that notice of the application for appointment of commissioners shall be served upon the " tenant of the freehold."

What does the statute mean by the terms " owner or possessor," " those entitled to lands" and " tenant of the freehold," as used in these sections?

The term " owner," as used in section 4, means tenant of the freehold or tenant in possession appearing as the visible owner. 2 Rob. Rep. 241. Tenant of the freehold, as used in section 7, means tenant in possession appearing as the visible owner. 20 Gratt. 511-12. See also 26 Gratt. 661.

The terms " those entitled to lands," " owner," " proprietor" and " tenant of the freehold," as used in these statutes, we respectfully submit all bear the same meaning. Taking the context, do not the words " those entitled to lands," as used in section 6, necessarily refer to the person to whom notice of the application shall be given, if proceedings be instituted under section 7, that is to the tenant of the freehold.

Jane C Clark was tenant of the freehold, and in possession of the land in controversy. The entry and construction of the road with her consent was lawful, and such being the case, the possession of defendant in error did not, at her death change and become unlawful.

It was not necessary to institute legal proceedings for the condemnation of the land. The statute provides that such proceedings shall be taken if the corporation cannot agree with those entitled to lands wanted for the use of the company. In the case at bar there was such agreement, and the condemnation would have been a useless proceeding.

2. The entry having been lawful, the action of unlawful detainer does not lie. Ejectment (and likewise unlawful detainer) lies where the entry was unlawful. McClinton v. P. Ft. W. & C. R. W. Co., 4 Am. Law T. Rep. 43; Peirce on R. Rds. 167, 179, 230. But ejectment does not lie where the entry was lawful. The action of ejectment proceeds for the possession of the premises, claiming that they have been unlawfully entered and unjustly withheld, and facts which go to disprove these make a legal defence. 101 Ill. 402; 10 Am. & Eng. R. cases, 39, and cases cited. See also Miss. & Tenn. R. R. Co. v. Devaney, 2 Am. R. 608, in which it was held that where the entry was in good faith, under the belief that it had title, the company was not a trespasser, though the title was, in fact, in another.

3. Ordinarily a life tenant cannot by any act encumber the estate of the remainder-man, but the proceedings by which lands are taken for public use, are, necessarily extraordinary in their nature, and at variance with well established rules as to the rights of property. The condemnation of land for public use is an exercise of the right of eminent domain, by which the commonwealth, acting by its general assembly, resumes the title to lands needed for public use. This resumption of title takes place, in the case of land needed for a railroad, when the charter is granted, and when the charter is accepted by the company, and the land authorized to be taken and used for public purposes is ascertained by the actual survey and laying out of the road, the condemnation, as to the land so ascertained, is complete, and as between the company, after lawful entry, and the land owner, there is no question of title, and only...