Jacksonville, T. & K.w. Ry. Co. v. Adams

• Decision Date: 04 March 1891
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS
• Court: Florida Supreme Court

9 So. 2

27 Fla. 443

JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS

Florida Supreme Court

March 4, 1891

Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

1. An administrator may maintain ejectment to recover possession of the lands of his intestate or testator.

2. The notice prescribed by chapter 3595, Laws Fla., 1885, to be given by the commissioners appointed to view the premises and appraise the lands to be taken in condemnation proceedings for right of way for a railroad company, in the absence of the personal appearance of the landowner, is indispensable and the requirement of the statute in this respect is jurisdictional, and cannot be disregarded.

3. An action of ejectment can be maintained against a railroad company to recover possession of a road-bed in use by the company, where the same has been taken without the consent of the owner, and without authority of law.

COUNSEL J. R. Parrott, for appellant.

A. W Cockrell & Son, for appellee.

OPINION

MABRY J.

The appellee, as administrator de bonis non cum testamento annexo of the estate of John S. Adams, deceased instituted a suit of ejectment on the 10th day of March 1887, in the circuit court of Volusia county, Fla., against the appellant corporation to recover a strip of land 100 feet wide, lying 50 feet on each side of the center of the road-bed maintained and operated by the said corporation in the W. 1/2 of section 13; all of section 14; E. 1/2 of N.E. 1/4; and S.E. 1/4 of section 15,--all in township 19 S., range 32 E., situated in Volusia county.

The declaration alleges that the defendant corporation in the court below is in possession of said strip of land, and refuses to surrender possession of the same to the plaintiff below, who, as administrator aforesaid, claims title to same, and also that the defendant corporation has received the profits of said land since the 20th day of April, 1886, of the yearly value of $5,000. A demurrer was interposed to the declaration by defendant below on the 2d day of May, 1887, and the causes of demurrer assigned are as follows: '(1) That plaintiff's declaration is insufficient in law, for that, from the facts therein shown and set forth, the plaintiff would not be, and is not, entitled to his action; (2) for that the court cannot, in law, grant the relief and right sought by plaintiff against the defendant.' This demurrer was overruled by the court, and on the 1st day of August, 1887, defendant below filed the general issue and three special pleas.

This cause was on the 2d day of February, 1888, referred to E. M. Randall, Esq., as referee, for decision, and on the 19th day of May, 1888, on motion of plaintiff below, the special pleas were stricken from the files by the referee. On the same day the cause was submitted by the respective parties to the referee, who, after hearing the evidence adduced and the argument of counsel, rendered a judgment on the 22d day of May, 1888, in favor of the plaintiff below for the possession of said strip of land, $180 for mesne profits, and the costs of the suit. On the same day that the judgment was rendered, defendant below, by attorneys, made a motion before the referee to set aside the judgment and grant a new trial, on the following grounds: (1) The verdict or judgment is not supported by the evidence; (2) that the verdict or judgment was not supported by the law; (3) that the verdict was excessive. This motion was overruled by the referee, and defendant below appeals to this court.

The errors assigned here are: (1) The court erred in overruling defendant's demurrer; (2) the court erred in granting plaintiff's motion to strike defendant's pleas; (3) the court erred in refusing a new trial to the defendant. The second ground of error assigned here is expressly waived by appellant, and it is not necessary to devote any attention to it.

The referee did not err in overruling the demurrer of defendant below to the declaration. The declaration is in the form prescribed by the statute in actions of ejectment, and the demurrer admits the averments therein. The appellant seeks to raise, under this assignment of error, the question whether or not an action of ejectment can be maintained to eject a railroad corporation from a right of way after the road has been constructed and put in operation. This question more properly arises in the final decision on the testimony introduced, and, as we duly consider this phase of the case under the motion for a new trial, it is not necessary to notice further this assignment of error.

On the trial before the referee a written stipulation, signed by the respective parties, was introduced, whereby it was agreed that a copy of the proceedings on the part of the Atlantic Coast, St. Johns & Indian River Railroad Company, in Volusia county, Fla., to condemn the land in controversy for right of way for use of its railroad, should be taken as a full and complete transcript of said proceedings, and that the defendant corporation took possession of said Atlantic Coast, St. Johns & Indian River Railroad in December, 1885, under a lease for 99 years, and has continued in possession of same under said lease. It is also agreed in said stipulation that, prior to the alleged condemnation proceedings on part of said Atlantic Coast, St. Johns & Indian River Railroad Company, the title in fee of the land in question had been duly conveyed to John S. Adams; that said John S. Adams died, testate, in April, 1876, and letters testamentary were duly granted on his estate to Ellen F. Adams in June, 1876; that Ellen F. Adams died in June, 1878, without making any settlement of said estate, and letters de bonis non cum testamento annexo were duly granted to John S. Driggs in July, 1878; that said Driggs was duly removed from his office as administrator aforesaid on the 6th day of June, 1885, and no settlement of said estate was had up to the time of his removal; and, further, that plaintiff was duly appointed and qualified as administrator de bonis non cum testamento annexo of said estate on June 16, 1885.

It is admitted, then, that prior to the alleged condemnation proceedings the title in fee had been conveyed to plaintiff's testator, and no questions are presented as to the source or deraignment of plaintiff's title. By the settled law of this state an administrator may maintain ejectment to recover possession of the lands of his intestate or testator, and this is not questioned by appellant anywhere in the record. It is insisted, however, on the part of appellant's attorney that the land in question had been duly condemned as a right of way for the Atlantic Coast, St Johns & Indian River Railroad Company, and that appellant has the same right to use, occupy, and possess the land as its lessor had. It is true that appellant has the same rights to the use of the land for right of way, to the extent of its lease, that the Atlantic Coast, St. Johns & Indian River Railroad Company had, but it is contended by appellee that the proceedings to condemn the land for right of way are null and void, and did not divest plaintiff below of his right to the possession of the land. Various objections are made to the proceedings by which the strip of land in question was sought to be condemned for right of way. We will not notice all the objections raised, because, in our opinion, there is one which is valid, and renders the condemnation proceedings void. Under the...