Saunders v. Memphis & R. S. R. Co.

• Court: Supreme Court of Tennessee
• Citation: 47 S.W. 155
• Parties: SAUNDERS et al. v. MEMPHIS & R. S. R. CO.
• Decision Date: 26 August 1898

47 S.W. 155 SAUNDERS et al.
v.
MEMPHIS & R. S. R. CO. Supreme Court of Tennessee. August 26, 1898.

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Ejectment by D. D. Saunders and others against the Memphis & Raleigh Springs Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Morgan & McFarland, for appellants. Turley & Wright, for appellee.

CALDWELL, J.

This is an action of ejectment. The plaintiffs are the owners of a tract of land lying between the city of Memphis and the town of Raleigh, in Shelby county. The defendant, a regularly chartered railroad company, claims as owner, and operates, a steam commercial railroad between Memphis and Raleigh; its line of track passing over and through the tract of land owned by the plaintiffs. The right of way through this land was taken, and the road constructed and put in operation, by the Raleigh Springs Railroad Company in 1891; such appropriation, so far as disclosed by this record, having been made without purchase, gift, or condemnation. That company became insolvent, and its property, including the right of way, was sold under decree of

Page 156

the chancery court in June, 1894. J. T. Fargason became the purchaser, and in August of the same year sold it to the defendant, the Memphis & Raleigh Springs Railroad Company. The latter company went into immediate possession, and has operated the road continuously from that time to the present. This action was commenced in June, 1896, to recover from the defendant the strip of ground on which the road is located through the land of the plaintiffs. The defendant pleaded not guilty, and the judge, trying the case without the intervention of a jury, rendered a judgment dismissing the suit. The plaintiffs have appealed in error.

The judgment of the court below is right. An action of ejectment does not lie in such a case. By its charter the defendant was authorized to acquire a right of way by condemnation, gift, or purchase, and to construct and operate a railroad thereon. It purchased the right of way here in question, with the rest of the road, from one claiming to have acquired title through another regularly chartered railroad company, which had taken this particular right of way, and others in the line, and constructed a road upon them. In this manner the defendant has come into the possession of the right of way through the land of the plaintiffs in good faith, and is occupying and using it for the...