Murphy v. Southern Ry. Co.
| Decision Date | 06 May 1902 |
| Docket Number | 1,138. |
| Citation | 115 F. 257 |
| Parties | MURPHY v. SOUTHERN RY. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clifford L. Anderson, for appellant.
P. H Brewster and Saunders McDaniel, for appellee.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
On December 19, 1895, the appellant filed a petition against the appellee, I. Y. Sage, and J. W. Lambert in the superior court of Fulton county, Ga., in which he alleged he owned certain real estate. He further alleged that the appellee, said I. Y Sage, and J. W. Lambert had taken possession of a portion of said property. He further alleged that Gray street was extended north from D'Alvigny street to the south line of a certain D'Alvigny strip, and east therefrom to a 30-foot street, running along the west side of the right of way of W. & A. Railroad to North avenue, said Gray street being 60 feet wide, and the defendants had excavated the north extension of Gray to a point 35 feet south of the northeast corner of lot 3, and its entire length east, from the north extension to the 30-foot street, thus destroying said street, in which he had and claimed an easement, and the fee of the east extension of Gray street. These were the material allegations of the original petition. The answer of the defendants denied that Murphy had any title to the land he claimed had been excavated, and denied the existence of the alleged streets. On a hearing before the judge the appellee, being dissatisfied with the decision, appealed the case to the supreme court, and that court affirmed the decision of the lower court. The appellant in the state court amended his petition, and alleged that there existed a street across the W. & A. Railroad to Marietta street from his property, and the defendants had laid tracks across the same and that the land-lot line between land lots Nos. 81 and 82 was not 185 feet north of D'Alvigny street, but was some 20 feet further north. The case coming on for trial in the state court, appellant dismissed his suit as to I. Y. Sage and Lambert, whereupon the appellee removed it into the circuit court of the United States for the Northern district of Georgia. The cause in that court was referred by consent to a special master, with full power to adjudicate all questions of lau and fact. The special master made a report to which the appellant filed exceptions as follows:
'First. That the master erred in finding that the plaintiff has no right or title or interest in and to the D'Alvigny strip which has been graded or is in use or occupied by the tracks of the defendant railway company, and is entitled to no damages on that account. Plaintiff says that said rulings and findings of the master is error; that he should have found, as alleged in the pleadings of the plaintiff, that the plaintiff did have a right, title, and interest in and to a part of the D'Alvigny strip, which has been graded, and is in use or occupied by the tracks of the defendant railway company, as alleged in said petition of plaintiff, and he is entitled to damages on account thereof, as alleged in said petition, and that said position of the plaintiff is sustained by the evidence before the master, and that the master's findings in this part of the case was not supported by the evidence adduced upon the trial of said case before him.
'Second. Plaintiff says that the master erred in his rulings and findings set out in paragraph two thereof. Plaintiff says that defendant railroad company had taken possession of all that part of lot described in his petition, and that the evidence adduced upon the trial of said case shows that the defendant had graded and taken possession of that portion of said lot described in said pleadings, and that the same was damaged in a much larger sum of money than found in his favor by the master in said paragraph of said findings, to wit, in the sum alleged in his petition, and that the evidence bore out this theory of the plaintiff's case; therefore finding No. 2 of the master was error.
'Third. Plaintiff says that the master erred in his findings in paragraph three thereof, by finding that the plaintiff had no right or title to any way, street, or road across the defendant railway company's tracks between the north extension of Gray street and the present location of North avenue, as it is extended across said railway tracks. Plaintiff says he never did claim in his pleadings any right to a street running...
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