Nashville, C. & St. L. Ry. Co. v. Mathis

• Decision Date: 16 January 1896
• Citation: 19 So. 384,109 Ala. 377
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. MATHIS.

19 So. 384

109 Ala. 377

NASHVILLE, C. & ST. L. RY. CO. v. MATHIS.

Supreme Court of Alabama

January 16, 1896

Appeal from circuit court, Marshall county; J. A. Billero, Judge.

Ejectment by George W. Mathis against the Nashville, Chattanooga & St. Louis Railway Company. There was a judgment for plaintiff and defendant appeals. Reversed.

Oscar R. Hundley and Goodhue & Sibert, for appellant.

Lusk &amp Bell, for appellee.

HEAD J.

The action is statutory ejectment, to recover possession of certain land, which is thus described in the complaint "A strip or parcel of land one hundred feet wide extending through the northeast quarter of the northwest quarter of section thirty-three in township eight of range four east, situated in Marshall county, Alabama; being fifty feet on each side of the center of the track of the railroad now in operation on said subdivision of land, the same being cleared of timber, graded, with excavations and embankments and trestles constructed thereon, on which locomotives and cars may now run, and which is the only railroad on said subdivision." This land is spoken of throughout the case, as "the railroad right of way." The controlling facts, which the testimony, without conflict, tended to establish as the basis for the respective claims of the parties, may be thus stated: There is an entire omission of any evidence with reference to the land sued for, or to the subdivision of which it forms a part, prior to the year 1858, and it is not made to appear who had the title or possession prior to that time. In 1858 the right of way of the Tennessee & Coosa Railroad Company was located over the land in dispute, and the roadbed graded in 1859 and 1860, all the way, in parts, between Guntersville and Attalla. In 1860 or 1861 the embankment on the land in controversy was thrown up by the said railroad company, and from that time nothing further was done on the road by the company, except clearing off the right of way over the whole line from Guntersville to Gadsden to some time in 1883. In 1873 Louis Wyeth, who was the president of the Tennessee & Coosa Railroad Company, purchased the 40-acre tract described in the complaint, and of which the land sued for formed a part, at some sort of tax sale made by the probate judge of Marshall county; but it does not appear that the purchaser ever procured a certificate or deed, or that any title passed to him thereby. The entire evidence with reference to said sale is an entry upon the record of tax sales kept by the probate judge, and signed by him, as follows: "The N.E. 1/4 of the N.W. 1/4, Sec. 33, T. 8, R. 4 E., containing 40 acres, ass'd to estate of W. N. Henderson, dec'd, for 1872 taxes, &c. Due $5.25, & sold to L. Wyeth." The plaintiff claims under said Wyeth, who is not shown to have taken possession of any portion of the tract until 1879. In that year he (Wyeth) rented the land to one Moore, and in the following year contracted to sell it to him, but Moore never at any time took actual possession of the strip in controversy. Neither the leasing nor contract of sale is shown to have been in writing. Pending Moore's possession, a deed was executed by Louis Wyeth to one Pugh on the 17th day of December, 1881, conveying, without warranty, merely the interest the grantor had, and this is the first instrument purporting to convey title found in the record. On the 7th day of December, 1883, Pugh conveyed the 40 acres to Moore, who had continued to reside upon a portion of the tract, and who remained there until he conveyed it to the plaintiff in 1886. Moore, who was examined for the plaintiff, speaking of his possession during the six years from 1880 to 1886, testifies that he lived on the land, upon which there were no improvements when he bought from Wyeth; that he cleared part of the land, built upon it, and made corn and cotton thereon; that when he bought the land there was an old railroad bed on it, running through the land; that he never cultivated any part of the land covered by the railroad bed; that no part of the railroad bed was inclosed; that he never interfered with the right of way at all, and had nothing to do therewith; that he never made any claim to the right of way, but was informed the railroad claimed it; and that nobody ever asserted any claim thereto. In 1886 the plaintiff, after his purchase, went into the actual possession of a portion of the tract conveyed by Moore's deed, claiming under the conveyance, but had never exercised any acts of ownership over the uninclosed right of way, further than paying taxes on the subdivision of which it formed a part. He neither inclosed, cultivated, nor cut timber from the right of way. In 1890 the defendant was put in possession of the right of way by the Tennessee & Coosa Railroad Company, and the road was completed in December of that year through the quarter section claimed by the plaintiff. 1891 the Tennessee & Coosa Railroad Company executed a conveyance of its whole line, property, and rights of way to the defendant company, which in 1892 completed the railroad to Guntersville, and put...