Jones v. Southern Ry. Co.

• Decision Date: 25 November 1922
• Docket Number: 3920.
• Citation: 285 F. 19
• Parties: JONES et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F. 19

JONES et al. v. SOUTHERN RY. CO.

No. 3920.

United States Court of Appeals, Fifth Circuit.

November 25, 1922

Henry A. Alexander and Arthur Heyman, both of Atlanta, Ga., for plaintiffs in error.

Wharton O. Wilson, Sanders McDaniel, and Edgar A. Neely, all of Atlanta, Ga., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

The plaintiffs in error were plaintiffs, in the trial court, in three several suits, which had been consolidated for trial and were thereafter consolidated for review by writ of error wherein they sought to recover certain quantities of steel rail, with their fastenings, which plaintiffs asserted were their property, and of which the defendant Southern Railway Company was in possession. Said possession was alleged to have been unlawfully taken in the year 1917. A demand on the Southern Railway Company for said property, and its refusal to comply, were also alleged.

The record showed that in the years 1902 and 1904 S. Morgan-Smith Company, a corporation, acquired from plaintiffs or their predecessors in title, certain strips of land in fee simple by four deeds. Three of these deeds contained a clause reciting that, in the event the said strip of land should cease to be used for a right of way for either a steam or electric railroad, the same should revert to the grantor or his heirs. The last of said deeds contained no such clause. Each deed stated that the land conveyed was a right of way for a railroad. S. Morgan-Smith Company in 1905 conveyed all of said parcels of land to the Roswell Railroad Company. This deed contained a like clause of reversion of said property, if it ceased to be used as the right of way of a steam or electric railroad.

The Roswell Railroad Company built a track on said right of way from its main line to an electric plant being erected on the Chattahoochee river. The Southern Railway Company was the beneficial owner of a large part of the stock of the Roswell Railroad Company and a very large creditor thereof. While a separate organization was kept up by the Roswell Railroad Company, it was practically operated by said Southern Railway Company.

An effort was made to take up this track in 1910, and the same was resisted, and resulted in an agreement to replace the portion taken up. The railroad ran, at one point, across a public road which went over on a bridge. In 1917 the public authorities determined to carry the public road on a solid embankment, which would block the railroad, and thereupon the Southern Railway Company removed the rails and fastenings. The charter of the Roswell Railroad Company had expired in 1910, but the operation of said railroad was continued until after 1917. In 1920 a bill was filed to pay the debts and liquidate the assets of the Roswell Railroad Company, as a dissolved corporation, and a receiver appointed thereunder.

At the conclusion of the evidence in the present case, the court granted a compulsory nonsuit. The question in this case is whether, at the time of the removal of said rails and fastenings by the Southern Railway Company, the title to and possession of the property described in the deeds from plaintiffs, including said rails and fastenings, had revested in the several plaintiffs, so that the action of the Southern Railway Company amounted to a conversion of said rails and fastenings.

There is no pretense that the track was built on property which was the property of plaintiffs; but it is insisted that at the time of the removal of said rails there had been an abandonment of the property for railroad purposes, and that while the rails could have been removed before such abandonment, upon such abandonment they became the property of the plaintiffs. If at the time of their removal they were assets of the expired Roswell Railroad Company, this would not help the plaintiffs; they must recover on the strength of their own right.

That the expiration of the charter of the Roswell Railroad Company did not terminate these conveyances, or the right to continue the use of this property for railroad purposes, whether they were only easements or of the land described, is quite evident. The road of that company was assets subject to be sold for the payment of its debts and distribution among its stockholders. Code of Ga. 1910, Sec. 2245. The purchaser could have secured a franchise to operate a...