Louisville & N.R. Co. v. Smith

• Decision Date: 02 February 1904
• Docket Number: 1,268.
• Citation: 128 F. 1
• Parties: LOUISVILLE & N.R. CO. v. SMITH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

128 F. 1

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

No. 1,268.

United States Court of Appeals, Fifth Circuit.

February 2, 1904

John W Judd (John B. Keeble and Chas. B. Stark, on the brief), for appellant.

W. R Walker (Thomas C. McClellan, on the brief), for appellees.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

1. It is shown by the bill that on December 19, 1853, the Legislature of Alabama passed 'An act to incorporate the Tennessee and Alabama Central Railroad Company. ' Act 1853-54, p. 298. The act provided that the railroad to be built should extend from Montevallo, in Shelby county, Ala through the town of Decatur, crossing the Tennessee river thence through Limestone county to some point on the boundary line between Alabama and Tennessee, and there to connect with other railroads. The charter authorized the company to contract for and receive conveyances for the right of way not to exceed 150 feet wide, and for the material necessary to build the road. It also made provision for the condemnation of the right of way where it could not be contracted for. Work began on the building of the road in 1856 or 1857, and it was finished through Limestone county to the Tennessee line in the year 1859. It is alleged on information and belief that the railroad company either acquired the right of way upon and through the defendants' lands under provision of the charter, or that it acquired such right by 'let' and license of the owners through whose lands the railroad was constructed. After the completion of the road through Limestone county, and through the lands now owned by the defendants, its operation was begun in the year 1859, and it has since been continuously operated by the complainant, and those under whom it claims, up to the time of the filing of the bill. It is alleged that since July 1, 1872, and up to the present time, the complainant has claimed, owned, held, operated, and maintained the railroad continuously without hindrance from any one, and that it is now holding, maintaining, operating, and claiming to own and operate it. These averments are emphasized in an amendment to the bill, in which it is averred that the right of way in question is continuous, extending through Limestone county, a distance of 26 miles, and was acquired and taken possession of more than 40 years ago, and that the complainant and those under whom it holds 'has claimed, used, occupied, and been in possession of said right of way all this time, continuously running its trains over the same, and continuously, wherever necessary, building switches and turnouts, ditching, grading, and doing all manner of work necessary to keep its roadbed and right of way in suitable condition and repair for the safe operation of its trains, both freight and passenger, and this use of said right of way has never been questioned or denied until the interference by the defendants. ' We think these averments are sufficient to show that the complainant has acquired an easement or right of way across the lands in question. In Alabama an action to recover lands, tenements, or hereditaments is barred by the statute of limitation of 10 years. Code Ala. 1896, Sec. 2795. The ancient doctrine of prescription required a use from time immemorial. But now, in most jurisdictions (and certainly in Alabama) the prescriptive period is the same as the local statute of limitations for quieting titles to land. Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412. Where a railroad company has the charter power to acquire a right of way for railroad purposes, and it enters upon the lands of the owner, with his consent or license, and builds its railroad, expending money in the prosecution of the work, and holds it continually for a period of more than 40 years, running trains over it daily, and exercising the acts of ownership that are necessary to keep the roadbed in proper condition during all that time, it acquires by prescription a right of way. Texas & Pacific Railroad v. Scott, 77 F. 726, 23 C.C.A. 424, 37 L.R.A. 94; National Water Works v. Kansas City (C.C.) 65 F. 691; Cogsbill v. Mobile & Girard Railroad, 92 Ala. 252, 9 South 512; Midland Ry. v. Smith, 113 Ind. 233, 15 N.E. 256.

2. It is unquestionably settled that equity has jurisdiction by injunction to prevent the interference with easements or their disturbance or destruction, actual or threatened. This doctrine has been applied in a great variety of cases, such as preventing the diversion of water, preventing the obstruction of a private right of way, preventing the pollution of a stream, preventing the obstructions of a public right of way, etc., and (in Cairo V. & C. Railroad v. Brevoort (C.C.) 62 F. 129, 135, 25 L.R.A. 527) in the prevention of obstructions or interference with a railroad's right of way. Every disturbance of an easement actual or threatened, will be restrained whenever, from the essential nature of the injury or from its continuous character, the legal remedy is inadequate. Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412; Hacke's Appeal, 101 Pa. 245; Gardner v. Trustees, 2 Johns.Ch. (N.Y.) 162, 7 Am.Dec. 526; Russell v. Napier, 80 Ga. 77, 4 S.E. 857; Nashville, etc., Railroad v. M'Connell (C.C.) 82 F. 65; 3 Pom.Eq.Jur. (2d Ed.) § 1351, and notes. It is shown by the bill that the defendants are denying the right of the complainant to the right of way, and are insisting upon their right to cultivate the lands up to the ends of the cross-ties of the complainant's roadbed and track, and are denying the complainant the right to go upon the lands included in its right of way for the purpose of reconstructing its roadbed and banks and cutting or repairing ditches therein as the same are needed in the proper maintenance and operation of the road. The complainant has been warned by the defendants not to do the work necessary on the right of way to keep the same in proper condition, and other wrongs and threatened wrongs are alleged in the bill; and it is then stated:

'The action of the defendants is such that the complainant is unable to keep and maintain its track and roadbed in proper and safe condition so as to suitably and safely operate its trains. That said defendants are continually threatening this complainant and its employees with suits, both civil and criminal, for entering upon its right of way contiguous to their land in the performance of the work necessary to be done in the maintenance and operation of the road.' These averments, taken in connection with the others in the bill, are amply sufficient to give a court of equity jurisdiction to protect the alleged rights of the complainant. Jones on Easements, Sec. 879 et seq.

3. The defendants contend that it does not appear from the bill that the suit involves property exceeding $2,000 in value, and that, therefore, the circuit court was without jurisdiction. The bill shows that the complainant is the owner of a railroad known as the Nashville & Decatur Railroad, 119 miles long, extending from Nashville, Tenn., to a junction with the Southern Railway near Decatur, Ala., including the roadbed tracks, switches, side tracks, rails, ties, bridges, etc. The exhibits to the bill showing rental values for long terms of years, and amount of taxes paid, show that the entire railroad is of great value, worth several millions of dollars. The railroad runs through Limestone county, Ala., a distance of 26 miles, and for a distance of about 20,000 feet through lands in that county which are owned in separate tracts by the defendants. It is averred that for the last 45 years the complainant and those under whom it claims has used the track, and is now using it, by running trains of cars over it. The complainant asserts the right to continue so to use the road, and claims that its right of way is 150 feet wide-- 75 feet on each side from the center of its track. The purpose of the bill is to protect the complainant in the use of this right of way against the unlawful interference of the defendants. The property claimed by the complainant in the bill is an easement or right of way. The easement extends from one end of its road to the other. After stating these facts, the complainant alleges that 'the value of the property, as mentioned in this bill as claimed by it, and which is in controversy in this suit, exceeds the sum and value of $2,000, exclusive of interest and costs. ' The construction placed on the bill by appellees' counsel can be best shown by a sentence from their argument: 'Plaintiff cannot join in a single suit in a federal court claims against several parties, and sustain the jurisdiction of the court by reason of the fact that the total amount involved exceeds the amount necessary to give the court jurisdiction. ' The railroad, as we have said, passes through the different tracts of defendants' lands for about 20,000 feet, varying in length through the separate tracts from 200 feet to 4,150 feet. The learned counsel for the appellees evidently construes the bill as involving, as to amount, not more than the value of a strip of land 150 feet wide across the respective tracts of the defendants. And, placing that construction on the bill, it is argued that the value of the several strips across the several tracts cannot all be added together to make the jurisdictional amount. If that construction of the bill were correct, unless the value of the strip on each defendant's land exceeded $2,000, the court would be without jurisdiction, for it has been often held that distinct claims against several defendants cannot be united to make up the amount necessary to give the court jurisdiction. Walter v. Northeastern Railroad, 147 U.S. 370, 13 Sup.Ct. 348, 37 L.Ed. 206; Clay v. Field, 138 U.S. 464, 11 Sup.Ct. 419, 34 L.Ed....