Mobile & G.R. Co. v. Cogsbill

• Decision Date: 19 December 1888
• Citation: 85 Ala. 456,5 So. 188
• Parties: MOBILE & G. R. CO. v. COGSBILL.
• Court: Alabama Supreme Court

5 So. 188

85 Ala. 456

MOBILE & G. R. CO. v. COGSBILL.

Supreme Court of Alabama

December 19, 1888

Appeal from circuit court, Russell county; JESSE M. CARMICHAEL Judge.

Action brought by Mrs. Mary H. Cogsbill against the appellant, a domestic corporation, to recover the possession of a small strip of land, with damages for its detention. The defendant pleaded not guilty, and the statute of limitations of 10 and 20 years, and issue was joined on these pleas. On the trial the plaintiff offered no written evidence of title, but proved her continuous occupation and possession since 1838. During her examination as witness plaintiff's counsel asked her "whether the defendant, or any officer of the company, ever proposed to her to buy any of the premises on which she lived, and which was at the time inclosed;" and she answered "that Mr. Clark, the superintendent of defendant's road, offered to pay her $50 for that portion of said land lying on the north side of her fence, and south of the railroad track, but that she refused the offer." To this question and answer, each, the defendant objected and duly excepted upon its allowance and admission. One section of defendant's charter gave it power to acquire the right of way for its road, by proceedings instituted before a justice of the peace, which were required to be returned to the commissioners' court of the county for approval and confirmation. Under this statutory power proceedings were instituted by the defendant in December 1852, for the condemnation of the right of way through the lands now claimed by the plaintiff; and these proceedings were returned to the commissioners' court, by which they were ratified and confirmed. A certified copy of these proceedings was offered in evidence by the defendant, and admitted without objection. The plaintiff was not a party to the proceedings, and testified that she had no notice of them. The defendant proved the location and construction of its road through the strip of land thus condemned, and also its continuous and uninterrupted use of the premises for railroad purposes until the commencement of this suit. On these facts the court charged the jury as follows: "The jury may look at any act of the defendant corporation done by its officers during the ten-years claim of adverse possession, and shown by proof, if such be the case, to show that they recognized plaintiff's title; and if from such facts they believe that...