Seaboard Air Line Ry. v. Banks

• Decision Date: 12 May 1921
• Docket Number: 5 Div. 777.
• Citation: 92 So. 117,207 Ala. 194
• Parties: SEABOARD AIR LINE RY. v. BANKS ET AL.
• Court: Alabama Supreme Court

92 So. 117

207 Ala. 194

SEABOARD AIR LINE RY. v. BANKS ET AL.

5 Div. 777.

Supreme Court of Alabama

May 12, 1921

Rehearing Denied Feb. 2, 1922.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Ejectment by the Seaboard Air Line Railway against Mrs. Mary Lou Banks and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Sayre and Gardner, JJ., dissenting.

Steiner Cran & Wiel, of Montgomery, and Frank De Graffenried, of Seale, for appellant.

A. A Evans, of Montgomery, and Andrews & Peach, of Sheffield, for appellees.

MILLER J.

This is a statutory ejectment suit by the Seaboard Air Line Railway appellants, against Mrs. Mary Lou Banks and Mrs. Nona Andrews. It was tried on an agreed statement of facts. The court below gave the general affirmative charge asked in writing by the defendants, and refused a similar charge requested in writing by plaintiff. These are the main errors assigned and insisted on in argument by plaintiff (appellant here).

W. H Banks on August 26, 1890, owned the S.W. 1/4 of section 35, township 15, range 26, in Russell county, and on that day he and his wife executed and conveyed to the Savannah, Americus & Montgomery Railway the right of way for its railroad in, through, and over said land; "the right of way hereby granted to be fifty feet on each side of the center line of the railway as the same shall be located or constructed in and over said lands." Immediately after the execution and delivery of said deed the Savannah, Americus & Montgomery Railway built its railroad through said lands and began operating its trains over it. The Seaboard Air Line, the plaintiff, succeeded to all the right, title, and interest which the Savannah, Americus & Montgomery Railway had in and to said lands, and has ever since held said railroad and operated and run its trains over the land.

The railroad was built in 1890 or 1891. Soon thereafter, W. H. Banks constructed a fence on each side of said railroad track, 25 feet from the center line of the railway, which inclosed with other lands of Banks on each side a strip of said right of way 25 feet wide parallel with the railroad. Banks used the lands so fenced on one side for pasture and the other side for farming purposes from 1890 or 1891 until his death in 1917 or 1918; and the defendants, who are his sole heirs, have continued to use said lands in the same way since his death. These two strips of land, so fenced and used, are the subject of this suit.

Plaintiff, or its predecessor, had no knowledge of any claim of ownership by Banks or those claiming under him, the defendants, of adverse possession of these strips of land, except that they were fenced and cultivated or used for pasture purposes until 1917 or 1918, when it was informed that-

The said Banks claimed said strips of land as his own, and "claiming that the right of way of said railroad extended only 25 feet each way from the center of the main track of said railway, instead of 50 feet; claiming that he had agreed to convey a right of way 50 feet wide, and that he was under the impression and so understood when he executed the deed to the Savannah, Americus & Montgomery Railway, presented to him for execution by the officials of said railway, that it conveyed a right of way only 50 feet wide; that after building said fence he claimed the lands inclosed thereby as his own and not subject to any right of way, and so held and claimed them until the time of his death, but without any notice to plaintiff or its predecessors of the claim and use of the claim and use of said right of way on the part of said W. H. Banks and defendants other than the erection and maintenance of said fences and the cultivation and grazing of said lands."

(The above statement as to the impression and understanding of Banks when he executed the deed is admitted merely for the purpose of showing the nature and character of Banks and defendants' possession, and is limited to that purpose. It is not claimed nor admitted that there was any fraud practiced or attempted on the part of the officers or agents of the Savannah, Americus & Montgomery Railway in securing the execution of the deed to the said right of way by Banks, nor is it claimed or admitted that Banks did not voluntarily and legally execute said deed.)"

The validity of the deed is not questioned. It conveys a railway right of way, 100 feet wide, 50 feet on each side of the center of the track, through the said land of W. H. Banks. It does not convey a fee simple or absolute title to the land. It simply conveys an easement in it. In Ala. Gr. Sou. R. R. Co. v. McWhorter, 202 Ala. 455, 80 So. 839, this court held substantially as follows:

"Where a grant of land to a railroad passed only an easement to a certain strip to be used as a right of way, possession by grantor or his successors of a portion of right of way, not being actually used by railroad, could not be adverse to railroad."

W. H. Banks, the grantor in the deed, and the defendants, his widow and daughter, his sole heirs, have been in actual possession of 25 feet on each side of the right of way since Banks conveyed it to plaintiff's predecessor, using it for pasture and farming purposes. It was not being actually used by the plaintiff for railway purposes. This possession by defendants for such purposes alone-the plaintiff having no actual necessity for it for railway use-would not constitute adverse possession to the plaintiff, the railroad. This possession did not interfere with, nor was it inconsistent with the use of the right of way by the railroad. Such possession by the vendor of plaintiff or his heirs or his assigns would not constitute adverse possession against the easement rights of the railroad. Ala. Gr. Sou. R. R. Co. v. McWhorter, 202 Ala. 455, 80 So. 839.

The plaintiff may maintain ejectment suit for the recovery of possession of the right of way. Ejectment will lie for the recovery of the roadbed and right of way of a railroad. Tenn. & Coosa R. Co. v. E. Ala. R. Co., 75 Ala. 516, 51 Am. Rep. 475; Profile Cotton Mill Co. v. Calhoun Water Co., 204 Ala. 243, 85 So. 284.

The plaintiff brings this ejectment suit for the recovery of possession of these strips of its right of way. The defendant pleads not guilty. A plea of not guilty admits possession of the land, but denies plaintiff's title and denies plaintiff's right of possession. Section 3842, Code 1907; McQuenn v. Lampley, 74 Ala. 408; Buxbaum v. McCorley, 99 Ala. 537, 13 So. 5.

Under the Banks deed plaintiff owns an easement in the land. This deed shows plaintiff's title to the easement in the land. Is it entitled to possession of this easement from the grantor or his heirs or his assigns, owners of the fee, without showing any necessity therefor for railway purposes? This question was answered by this court through Justice Stone in 75 Ala. 516, 51 Am. Rep. 475; Tenn. & Coosa R. R. Co. v. E. Ala. Ry. Co., when he wrote:

"Lands claimed and condemned as roadbed and right of way of a railroad stand in a different category from that of ordinary easements. Over them is acquired, not the right of use to be enjoyed in common with the public, or with other persons. The right and use are exclusive, and no one else has any right of way thereon. M. & O. R. R. Co. v. Williams, 53 Ala. 595; M. & M. Ry. Co. v. Blakely, 59

Ala. 471; Tanner's Ex'r v. L. & N. R. R. Co., 60 Ala. 621; S. & N. R. R. Co. v. Pilgreen, 62 Ala. 305; Cook v. Central R. R. & Banking Co., 67 Ala. 533; R. & G. R. R. Co. v. Davis [19 N. C.] 2 Dev. & Bat. (Law) 451; Jackson v. R. & B. R. R. Co., 25 Vt. 150; T. & B. R. R. Co. v. Potter, 42 Vt. 265. "So, the title of a railroad corporation to the possession of the soil covered by the roadbed and right of way will, after condemnation, dominate all adverse claim of possession, even by the owner of the fee. ***

"In the following cases will be found a curious discussion, tending strongly to show that the roadbed and superstructure-in fact, everything attached to the soil, on which a railroad is built-are considered realty: Randall v. Elwell, 52 N.Y. 521; s. c., 11 Am. Rep. 747; Hoyle v. P. & M. R. R. Co., 54 N.Y. 314; s.c., 13 Am. Rep. 595. And there is certainly much reason for the opinion. The roadbed and right of way are as immovable as the soil itself, the superstructure is attached to the soil, and the corporation has the exclusive right to the possession of it. In Central Pac. R. R. Co. v. Benity, 5 Sawy. 118, the precise question we are considering was presented, and the court, Circuit Justice Sawyer participating, decided the action of ejectment would lie. So we hold it will lie in this case."

Chief Justice Stone again in Yancey v. Savannah & West. R. R. Co., 101 Ala. 234, 13 So. 311, wrote:

"The easement, with right to possess and occupy, thereby passed to the grantee; and it was thus in actual possession of the tract of land conveyed."

In Sadler v. Ala. Gr. Sou. R. Co., 204 Ala. 155, 85 So. 380, Judge Somerville, speaking for the court, said:

"A railroad right of way is more than a mere easement, and includes the actual possession, or right to the actual possession, of the entire surface, for every proper use and purpose in the construction and operation of the road."

This deed in this case conveys an easement in said land. The rights of the owner of the easement for the purpose of the grant are paramount to the rights of the...