Nashville, C. & St. L. Ry. v. Karthaus

• Decision Date: 20 April 1907
• Citation: 150 Ala. 633,43 So. 791
• Parties: NASHVILLE, C. & ST. L. RY. v. KARTHAUS ET AL.
• Court: Alabama Supreme Court

43 So. 791

150 Ala. 633

NASHVILLE, C. & ST. L. RY. v. KARTHAUS ET AL.

Supreme Court of Alabama

April 20, 1907

Rehearing Denied May 6, 1907.

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by Ernest C. Karthaus and others against the Nashville Chattanooga & St. Louis Railway. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This was an action begun by the heirs of Karthaus to recover damages for certain sand, alleged to have been taken by the railroad from its right of way through and on plaintiffs' land and sold in the market. The defendant insisted, by way of defense, that the sand was taken off of the 100-foot right of way owned by the road, and that the sand belonged to defendant, and not to the plaintiffs.

O. R Hundley, for appellant.

Cooper & Foster, for appellees.

HARALSON J.

1. The suit was by the heirs of E. Karthaus, against the Nashville Chattanooga & St. Louis Railway, to recover $2,500 for the conversion by it, at different times between April 16, 1900 (the date of the death of said Karthaus), and August 29, 1902 (the date of the institution of this suit), of 6,000 cubic yards of sand, alleged to be the property of the plaintiffs.

The complaint as first filed, contained a count for the conversion of the sand in 1900-1902, and a count, also, for trespass for taking the sand. As a result of the pleading in the cause, this complaint was amended by striking out the count in trespass, and amending the trover count, so as to claim damages for sand taken after the death of Karthaus, the original owner of the land and father of plaintiffs, up to the time of the bringing of this suit.

There were pleas filed by the defendant,--of not guilty, and the statute of limitations of six years. Other pleas were stricken, on the ground that the matters and things set up in them, if available as a defense, were available under the general issue. It appears that all these defenses were allowed to be shown in the progress of the trial, under that issue, and, if there was error in striking said pleas, it was error without injury.

2. The main matters of defense were, that the plaintiffs were not in legal possession of the lands from which the sand was taken and that it was taken from lands owned by E. Karthaus, the father of plaintiffs, in his lifetime; that at the time of the bringing of this suit, said Karthaus was dead, and there was an administrator of his estate duly appointed and qualified, and who was acting as such.

3. Considering the case under the general issue and as though the plea in respect to an administration on the estate of said Karthaus had not been stricken, it appears that Carrie A. Karthaus, the widow of deceased was, on the 25th of May, 1900, duly appointed and commissioned as administratrix of said estate, and on November 1, 1904, she reported that the assets of said estate had been applied to the payment of the debts of her intestate which had come to her knowledge, and she had made distribution to the children and heirs at law of said decedent. There was no evidence of any other debts remaining unpaid, nor that the administratrix had ever taken possession or control of any of the real estate of her intestate for the purposes of administration.

In Calhoun v. Fletcher, 63 Ala. 580, it was held, "that, upon the death of one seised of a hereditable estate in lands, the title descends, eo instante, and vests in the heir at law; * * * that to suspend or destroy the heir's right to the possession of the inheritance, the personal representative must actually take possession or must assert his right, and follow it up with the means necessary to that end, * * * and that, pending administration, it is only actual possession of the personal representative, or his asserted right thereto, followed up by proceedings to obtain possession, or his asserted right to the rents, income and profits, that can take away, or suspend, the right of the heir (or devisee) to prosecute a suit for the possession of lands descended or devised, or any other action which such heir (or devisee) could maintain by the rules of the common law. It requires action by the personal representative to divest the heir of his right to the inheritance, with all common-law incidents; and in the absence of action, effective action, the right remains with the heir." To the same effect is Leatherwood v. Sullivan, 81 Ala. 463, 1 So. 718; Stovall v. Clay, 108 Ala. 105, 20 So. 387; Banks v. Speers, 97 Ala. 562, 11 So. 841. This defense was, therefore unavailing.

4. It is contended by defendant, that it was in the adverse possession of the land, from which the sand was taken. The defendant claims and can claim nothing but an easement through these lands, which is never adverse to the owner, except for railroad purposes.

But, however long it may have had possession of this easement, it had the right to the use of the land for purposes of proper construction and maintenance of its road, and had no right to make excavations, or sever any part of the corpus of the property or convert it to any use except for railroad purposes.

In Vermilya v. C. M. & St. P. Ry. Co., 24 N.W. 234, 66 Iowa, 606, 55 Am. Rep. 281, it was said: "When the right of way is acquired by ad quod damnum proceedings under the statute, the title of the timber, sand and the like, found upon the land, remains in the owner, and can be used by the corporation owning the railroad, only for the purposes connected with its construction and use"--citing Preston v. Dubuque & P. R. Co., 11 Iowa, 15; Henry v. Dubuque & P. R. Co., 2 Iowa, 288.

In Aldrich v. Drury, 5 Am. Rep. 624, 8 R.

I. 554 the court held that "a railroad company, or any...