Louisville & N.R. Co. v. Smith

• Decision Date: 21 July 1904
• Citation: 37 So. 490,141 Ala. 335
• Parties: LOUISVILLE & N. R. CO. v. SMITH.
• Court: Alabama Supreme Court

37 So. 490

141 Ala. 335

LOUISVILLE & N. R. CO. v. SMITH.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.

Action for trespass on land by Elizabeth Smith against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, Elizabeth Smith, against the Louisville & Nashville Railroad Company, to recover damages for the alleged willful, wanton, and malicious trespass upon lands belonging to the plaintiff; the damages claimed in the complaint being $1,999. The trespass complained of was the cutting of a ditch over part of the lands which abutted upon and adjoined the railroad track occupied by the defendant. The defendant pleaded the general issue, and a special plea (No. 2) in which it set up the fact that the ditch was cut upon the land which was within what the defendant's predecessors had the right to use for a right of way, and that the defendant was the lessee of the railroad company which had this right granted it by its charter. The plaintiff moved to strike this special plea from the file because it set up nothing more than the general issue. The court granted this motion and struck said plea from the file, and to this ruling the defendant duly excepted. The cause was tried upon issue joined upon plea of the general issue.

On the trial of the case the following facts were shown: The lands upon which the ditch was cut were claimed and occupied by the plaintiff, who was the widow of one Aaron Smith. That said Aaron Smith died in 1884, after having been in possession of and having lived upon said lands since 1850. After his death the premises were set apart to his widow as a homestead since which time she had lived there, and had been in unquestioned possession. From the building of the railroad until his death her husband had cultivated the land up to the foot of the embankment, and, up to two or three years before the trespass, plaintiff maintained a fence at the foot of the embankment. In 1853 the Legislature of Alabama chartered the Tennessee & Alabama Central Railroad Company (Laws 1853, p 298), and authorized it to build a road from Decatur to the Tennessee state line. The Tennessee Legislature at about the same time chartered the Tennessee & Alabama Railroad Company and the Central Southern Railroad Company, and authorized the first named to build a road from Nashville to Columbia, and the latter to build from Columbia to the Alabama state line to connect with the Tennessee & Alabama Central Railroad Company. Said companies completed and put into operation their several roads about 1859 or 1860. In 1865 or 1866 under authority of the Legislatures of Alabama and Tennessee, the said three railroad companies consolidated their roads, and became the Nashville & Decatur Railroad Company. In 1871 the Louisville & Nashville Railroad Company leased the said properties for 30 years, and have since "held, controlled and operated" same. In 1899 another lease was executed to the defendant company, by the Nashville & Decatur Railroad Company, leasing "all its roadbed, easements, properties, depots, franchises and railroad belongings of every kind and character for a period of nine hundred and ninety-nine years." The defendant alleged that it did not know whether the original company or its successors ever secured from the owners of the land through which the road was built any conveyance of any land for its right of way through the disputed premises, but the company built its road by the license or let of the original owners. The company had not assumed or taken possession of the premises in dispute, east or west from the embankment; had not exercised any control over the premises in dispute until the time of the alleged trespass. The plaintiff served notice on the agent of the defendant not to trespass in any way upon said property, after which defendant dug a ditch on plaintiff's land, about 3 feet wide and 300 feet long, which was necessary for the proper maintenance and operation of said road. The charter of the company authorized it to contract for and receive conveyances for land for said road, not to exceed 150 feet in width, and, when the price could not be agreed upon, the sheriff, upon application, should summon a jury to assess damages.

The bill of exceptions contains the following recital as to the proof of the advice of counsel: "J. W. Judd was then examined as a witness for the defendant, and testified that he lived in Nashville, Tenn., and was a lawyer by profession, and had been a practicing attorney for more than thirty years, and was now, and had been for several years past, the assistant district attorney for the Louisville & Nashville Railroad Company for Tennessee, and Nashville & Decatur Division in Alabama. He was then asked this question: 'State whether or not you advised the officials of the Louisville & Nashville Railroad Company, whose duty it was to maintain, operate, and keep in repair that part of defendant's roadbed running through the land described in plaintiff's complaint, that they had the right to enter upon said lands, not exceeding 75 feet from the center line of the track on each side, for the purpose of doing necessary work in order to maintain, repair, and operate the defendant's road?' The plaintiff objected to this question because it called for illegal, irrelevant, and immaterial evidence, and the court sustained said objection, to which action of the court the defendant then and there, in open court, excepted." The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence, they will find for the defendant. (2) I charge you, gentlemen of the jury, that, under the undisputed facts of this case, the plaintiff can only recover nominal damages." There were verdict and judgment for the plaintiff, assessing her damages at $1,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Jno. B. Keeble, John W. Judd, and Harris & Oyster, for appellant.

Thos. C. McClellan, for appellee.

SHARPE J.

In the statement of facts agreed on it is recited that plaintiff "and those through whom she...