Southern Ry. Co. v. Meaher

• Decision Date: 02 January 1917
• Docket Number: 2988.
• Citation: 238 F. 538
• Parties: SOUTHERN RY. CO. v. MEAHER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

238 F. 538

SOUTHERN RY. CO. v. MEAHER et al.

No. 2988.

United States Court of Appeals, Fifth Circuit.

January 2, 1917

D. P Bestor, Jr., of Mobile, Ala., for plaintiff in error.

Gregory L. Smith, of Mobile, Ala., for defendants in error.

The record shows that this suit was originally instituted against the Southern Railway Company by Augustine Meaher and Henry Hall Clarke, individually, and Henry Hall and Norborne R Clarke, as executors and trustees under the will of G Clifton Clarke, deceased. The first count claimed for the conversion counts, each claiming $25,000 damages. The first count claimed for the conversion of 50,000 cubic yards of clay, and the second for a like amount of earth.

The plaintiffs introduced two deeds in evidence, covering the land through which defendant's right of way ran. These deeds ran to George C. Clarke and Augustine Meaher. They showed that Mr. Clarke died in July, 1909, that Mr. Meaher had looked after this land since the death of Mr. Clarke, and that he and the estate of G. Clifton Clarke, as joint owners were in the possession of these lands in 1914 and 1915. They further showed that the defendant in 1914 and 1915 had dug a large amount of dirt or clay from the side of a cut several miles north of Mobile, through which the defendant's track and right of way ran through plaintiff's lands, and transported it and used it in filling in trestles on defendant's line north of plaintiff's lands, and in filling in the freight yards and freight depot of defendant in the city of Mobile, and in filling in a part of the freight yards of the Mobile & Ohio in the city of Mobile, and in filling in and making a connecting or spur track between the defendant's road and that of the A.T. & N. Railroad, and introduced evidence to show the value of this dirt in Mobile and at the several places where it was dumped.

The defendant, Southern Railway Company, introduced evidence which showed that its predecessor in title, the Mobile & Alabama Grand Trunk Railroad Company, was chartered by an act of the Legislature of Alabama in February, 1866 (Laws 1865-66, p. 405) and thereby authorized to build a railroad from the city of Mobile north through the state of Alabama, with a right of way 100 feet wide; that in 1871 said railroad condemned a right of way 100 feet in width through the 'Johnston Tract,' the property of plaintiffs now in question; that immediately it constructed its road through this tract; that the title, franchises, and properties of the Mobile & Alabama Grand Trunk Railroad, by a straight chain of conveyances, court proceedings, and legislative acts, became vested in the defendant, the Southern Railway Company; that none of the dirt was taken from anywhere except from their 100-foot right of way; that the dirt so taken was hauled by it and used as shown by the plaintiffs' evidence, a great deal being used for railroad purposes on the Mobile & Alabama Grand Trunk Railroad; that one of the plaintiffs, Mr. Meaher, had consented to the taking of at least some of this dirt, and that this digging was in progress, more or less continuously, for about 14 months, and no protest or notice to stop was ever made or given by Mr. Meaher, although he had many times during that time been both at the place where the dirt was being dug and at the places where the dirt was being dumped; that it had acted in good faith in taking and using this dirt; and that this dirt had little or no market value, either where it was used or where it was excavated.

At the conclusion of the trial the jury brought in a verdict for the plaintiffs for $2,600.10, and judgment was rendered thereon by the court, to reverse which this writ of error is prosecuted; the plaintiff in error assigning 27 errors relating to admission and rejection of evidence, and charges to the jury given and refused.

Before PARDEE and WALKER, Circuit Judges, and CALL, District Judge.

PARDEE Circuit Judge (after stating the facts as above).

The assignments of error, all insisted upon in this case, cover the propositions:

First. That the court erred in refusing to give the general affirmative charge requested by the defendant. This is based on the proposition that the suit was brought by the three persons joining, to wit, Augustine Meaher and Henry Hall Clarke, individually, and Henry Hall and Norborne R. Clarke, as executors and trustees under the will of G. Clifton Clarke, deceased, and that under the proof in the case Henry Hall Clarke, individually, had no interest in the subject-matter of the suit, and the law is thoroughly settled in both the state and federal courts and in all character of cases that all plaintiffs to an action must be competent to sue or the action cannot be maintained, and that if one of several joint plaintiffs is not entitled to recover then none can.

This proposition seems to be well founded. We do not find under the proof that Henry Hall Clarke had any individual ownership in the property claimed to have been damaged, and the law claimed to apply seems well settled. Prestwood v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.St.Rep. 136.

Second. That the court erred in refusing to charge the jury that if they believed from the evidence that Augustine Meaher, one of the parties plaintiff, gave the defendant permission or authority to dig and remove any of the clay or earth in question, then they cannot award the plaintiffs any damages for the digging and removal of clay or earth covered by such permission or authority, on the ground that, where several who are cotenants sue to recover damages to their estate, the plea that sets up that the damages were by the consent or direction of one of the plaintiffs presents good defense to the action. The plaintiff who consented to the action could not recover, and all persons suing for the same action must be entitled to recover, or none can.

There was evidence sufficient to go to the jury that Meaher, one of the cotenants suing, consented to the removal of the earth sued for, and the law is plain. Lowery v. Rowland et al., 104 Ala. 420, 16 So. 88. As on a reversal a new trial may be had, in which the evidence may be different in relation to both foregoing propositions, we take up the main and controlling question in the case, which is as to the proper rule of damages on the theory that the plaintiffs below are entitled to recover. Said plaintiffs sued for the conversion of certain clay and...