Newton v. Louisville & N.R. Co.

• Decision Date: 31 July 1895
• Citation: 110 Ala. 474,19 So. 19
• Court: Alabama Supreme Court
• Parties: NEWTON v. LOUISVILLE & N. R. CO. [1]

19 So. 19

110 Ala. 474

NEWTON v. LOUISVILLE & N. R. CO. ^[1]

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Ejectment by Nancy E. H. Newton against the Louisville & Nashville Railroad Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

The only rulings assigned on the present appeal relate to the action of the trial court in refusing certain charges asked by the plaintiff, and in giving certain other charges requested by the defendant. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges: (1) "The court charges the jury that, if they believe the evidence they must find for the plaintiff, Nancy E. H. Newton." (2) "The court charges the jury that the true construction of the deed introduced in evidence, and under which plaintiff claims title, is that the boundary line of said land is the bottom of the cut, beginning two feet from the south rail of the second track from the Alabama river known as the main line of the Louisville & Nashville Railroad." (3) "The court charges the jury that the plaintiff has the right in this case to recover, under her prior possession, if the jury believe, from the evidence that she had such possession before any deed was made of the property sued for, and further believe that the railroad held as trespassers." (4) "The court charges the jury that, if they believe, from the evidence, that the plaintiff entered into prior possession of the property before any deed was executed, and held since under that possession, and that the railroad company has been in possession as mere trespassers, then the plaintiff would be entitled to recover on her prior possession, without reference to her deed." (5) "The court charges the jury that, if the railroad cut through which the second track from the Alabama river runs was two feet south of the said second track, as it stood at the time of the purchase of the plaintiff, in 1879, of said land, then the plaintiff is entitled to recover whatever portion of said land lies south of that south side of said cut, as it then stood." The court refused to give each of said charges, and to the refusal to give each of these charges the plaintiff separately excepted. The plaintiff also separately excepted to the court's giving, among others the following written charges requested by the defendant: (8) "The court charges the jury that the plaintiff did not take title in a slanting direction, but only took from the top of the cut in a vertical direction." (9) "The court charges the jury that defendant is in no way responsible for any excavation made by the laying or building of the track known as the 'Alabama Midland Railway,' the same being the fourth track on the map." There was judgment for the defendant, and the plaintiff appeals.

Farnham & Crum, for appellant.

Chas. P. Jones, for appellee.

HEAD J.

This is a statutory real action in the nature of ejectment. The property in controversy is a strip of land, 20 by 250 feet lying alongside of the main line of defendant's railroad in the city of Montgomery, Ala. At the time of the trial this strip of land was occupied, in part, by two railroad tracks, one belonging to the defendant and the other to the Alabama Midland Railway. It was shown, without conflict, that in 1879 the plaintiff purchased of the Mobile & Montgomery Railway Company certain real estate, described as follows in the bond for title made to her by said company: "All that piece or parcel of land lying and being in the county and city of Montgomery, in the state of Alabama, and more particularly described as that part of lots 4 and 5 and the west half of lot 3 in square 19, according to Hanrick's plat, that lies south of the railway cut." The bond for title was made on the 8th day of August, 1879, and a deed, following it, was executed on the 3d day of November, 1881,-the description of the property being alike in the two instruments. It was admitted that the strip sued for was a part of said lots 4 and 5 and west half of lot 3, and the chief controversy was over the question, did it or any part of it lie south of the railway cut at...