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

• Decision Date: 22 November 1898
• Citation: 24 So. 933,120 Ala. 600
• Parties: NASHVILLE, C. & ST. L. RY. v. HOBBS ET AL.
• Court: Alabama Supreme Court

24 So. 933

120 Ala. 600

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

Supreme Court of Alabama

November 22, 1898

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Statutory ejectment by Isham D. Hobbs and another against the Nashville, Chattanooga & St. Louis Railway. From a judgment on a verdict in favor of plaintiffs, defendant appeals. Affirmed.

This was a statutory action of ejectment brought by the appellees against the appellant to recover a certain tract of land specifically described in the complaint. The tract of land sued for was used by the defendant as its right of way. The suit was instituted on July 9, 1895. The defendant pleaded the general issue, and suggested upon the record that it had for three years next before the commencement of the suit had adverse possession of the land sued for. The defendant also pleaded a special plea, which, as amended, set up the fact that it was not in possession of the fee to the real estate claimed in the complaint, but that its possession was limited to an easement therein, which was used as a right of way, and that it had possession and claimed the ownership of such easement under and by virtue of a judgment rendered in a condemnation proceeding instituted by it against the plaintiffs. There was set out in the amended plea the petition for the condemnation and the judgment of condemnation. This petition is set out at length in the opinion. It was then averred in the special plea, as amended that one William F. Gardner, as guardian for the plaintiffs received for the use of said plaintiffs the sum of $150, paid into court under the judgment of condemnation, and that the defendant went into possession of said lands under the judgment of condemnation, and erected thereon permanent improvements of much value, without objection on the part of said Gardner, as guardian or otherwise, and with his full knowledge and acquiescence, and that, therefore, the plaintiffs were estopped to maintain the present action. To this special plea, as amended, the plaintiffs demurred upon the grounds (1) that it does not appear from said plea, as amended, that the land sued for, or any part thereof, was mentioned or described in the petition for condemnation set out in said plea; (2) that the averments of said plea, as amended, show that the probate court was without jurisdiction to condemn the real estate sued for, or any part thereof; (3) that the matters set forth in said plea as amended do not constitute an estoppel upon the plaintiffs. This demurrer was sustained, and issue was joined on the other pleas. On the trial of the case it was shown that the petition for condemnation was filed on August 2, 1892, and the judgment of condemnation was rendered on September 7, 1892. W. F Gardner, guardian of the plaintiffs, was introduced as a witness, and he testified that, prior to the time the defendant took possession of the land sued for, it was in the possession of the plaintiffs, who claimed it as owners; that he was the guardian of the plaintiffs during the year 1892. The defendant then offered to prove by said witness that he knew of the proceedings of the probate court in the year 1892 to condemn a right of way through the lands of the plaintiffs, and that he knew of the judgment of condemnation entered by the probate court; that he received from the probate judge $150 paid into court by the defendant under said judgment of condemnation; that said sum was received by him, as guardian for the plaintiffs, for their use, and was by him included in his settlement with the plaintiffs as his wards, and paid over to them. The plaintiffs objected to all of this testimony, separately and severally, upon the ground that it was incompetent and illegal. The court sustained the objection, and the defendant separately excepted. The defendant then showed to the witness a deed, which purported to be executed by him as guardian of the plaintiffs conveying to the defendant the tract of land described in the complaint; and, after the witness had testified that he had executed said deed, the defendant offered it in evidence to show the receipt of Gardner, as guardian, of the $150 expressed in said deed as the consideration thereof, and which was paid under the order of the judgment of condemnation. To the introduction of this deed in evidence the plaintiffs objected on the ground that it was incompetent and illegal. The court sustained the objection, and the defendant duly excepted. It was admitted that the defendant was in possession of the land sued for, as a right of way, and had its railroad constructed thereon. The defendant then offered in evidence the judgment entry rendered in the condemnation proceeding. The plaintiff objected to this evidence because it was illegal and incompetent. The court sustained the objection, and the defendant duly excepted. Upon the defendant then offering to introduce in evidence the original report of the commissioners appointed to assess the damages to plaintiffs' land by the construction of the defendant's road, the plaintiffs objected to its introduction upon the ground that it was illegal and incompetent evidence. The court sustained the objection, and to this action of the court the defendant duly excepted. The defendant then offered in evidence the original petition for condemnation, which was filed on August 12, 1892. To the introduction of this petition in evidence the plaintiffs objected upon the ground that it was incompetent and illegal evidence. The court sustained the objection, and the defendant duly excepted. The defendant thereupon offered in evidence the said petition, report of commissioners, and judgment entry, jointly, and the plaintiffs objected to their introduction upon the ground that they were incompetent and illegal evidence. The court sustained the objection, and to this ruling of the court the defendant duly excepted. It was proven by the defendant that the road was surveyed and located on the real estate in controversy in May, 1892, and was constructed in the fall of the year 1892. Upon the introduction of all the evidence the court, at the request of the plaintiffs, gave to the jury the following written charge: "If the jury believe the evidence, and find from the evidence that the defendant railway was in possession of the land sued for when the suit was brought, claiming it for itself, and not as a co-tenant with plaintiffs, then the jury should find a verdict in favor of the plaintiffs." There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Oscar R. Hundley, for appellant.

Grayson & Foster and R. W. Walker, for appellees.

TYSON J.

This is a statutory action of ejectment to recover possession of certain lands described in the complaint. A number of special pleas were filed by defendant, in addition to the plea of not guilty, to which demurrers were sustained. The record shows that the matters set up as a defense in these special pleas were offered in evidence by defendant under the plea of not guilty, and, if they constitute a good defense, could have been interposed. Newsome v. Guy, 109 Ala. 305, 19 So. 448. The plaintiffs made out a prima facie case of recovery by proof of possession of the lands under claim of ownership when the defendant entered thereon, and are entitled to recover, unless the defendant shows a superior title. 3 Brick. Dig. p. 325; 1 Brick. Dig. p. 637. The defendant claimed the right to the possession of the lands in controversy under condemnation proceedings instituted by it against these plaintiffs in the court of probate of the county of Madison. Its right to possession is determinable upon the validity of that proceeding. If void, these plaintiffs can maintain this action. Tennessee & C. R. Co. v. East Alabama Ry. Co., 75 Ala. 516, and authorities there cited; Hooper v. Railway Co., 78 Ala. 213.

The land was a lot or parcel,...