Mclendon v. The Atlanta

• Decision Date: 31 January 1875
• Citation: 54 Ga. 293
• Parties: Jesse McLendon, plaintiff in error. v. The Atlanta and West Point Railroad Company, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 293

Jesse McLendon, plaintiff in error. v. The Atlanta and West Point Railroad Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Railroads. Land. Damages. Actions. New trial. Before Judge Buchanan. Troup Superior Court. May Term, 1874.

On December 26th, 1872, McLendon brought assumpsit against the Atlanta and West Point Railroad Company for $10,000 00. In the first count, he alleged that the defendant was indebted to him $3,500 00 for the use and occupation of a right of way through certain lands of his from February 1st, 1853, to December 20th, 1872. In the second count, he claimed the same amount as due him for the same causes on a quantum meruit. In the third, he alleged that on February 1st, 1853, the defendant took possession of a certain strip of land belonging to him, and has since occupied it as a right of way, and that it is of the value of $3,500 00; that the defendant has received and enjoyed the profits of said land and of the right of way, of the annual value of $200 00; that it refuses to deliver the said land to the plaintiff or to pay him the profits thereof.

The defendant pleaded as follows'. 1st. Title in itself to the right of way by reason of twenty years' possession thereof before suit brought; that for more than seven years before the commencement of suit it has used said right of way without hindrance by the plaintiff or any one else. 2d. The statute of limitations as to all of plaintiff's demand which accrued *more than four years prior to suit brought. 3d. That plaintiff agreed to donate to the defendant said right of way, in consideration of the location and building of its road through his land.

Evidence was introduced to show that the defendant took possession of the strip of land alluded to in the declaration for the purpose of grading, etc., in the latter part of the year 1851, or first of the year 1852, and had exclusive possession by its cars running thereover, in 1853, and had so held the same ever since. The value of such use and occupation was proven. It was shown that the land over which said right of way passed was in litigation at the time of the location of defendant's road thereon, and so continued until the year 1856, when the plaintiff purchased the interests of the respective contending parties and took conveyances thereto. It was proven that the plaintiff was a director of the defendant from the time of the location of said road until February 26th, 1869. There was evidence to show that when the road was located the plaintiff had said that if he obtained the title to the land in litigation he would give the right of way to the defendant; and that he had frequently since said that he had given such right of way.

There was much other testimony not material here. The jury found for the defendant. The plaintiff moved for a new trial upon the following, amongst other grounds:

1st. Because the court erred in charging the jury "that if the defendant claimed title adversely to the plaintiff, to the right of way mentioned. in the plaintiff's declaration, and if the defendant's possession was adverse to plaintiff's title, the action for use and occupation cannot be sustained.

2d. Because the court erred in charging the jury as follows "If, while the title to the land was in others, the defendant occupied the same without their objection, and had been so in possession for years previous to the...