Southern Ry. Co. v. Cleveland

• Decision Date: 15 June 1909
• Citation: 163 Ala. 470,50 So. 122
• Parties: SOUTHERN RY. CO. v. CLEVELAND ET AL.
• Court: Alabama Supreme Court

50 So. 122

163 Ala. 470

SOUTHERN RY. CO. v. CLEVELAND ET AL.

Supreme Court of Alabama

June 15, 1909

Appeal from Law and Equity Court, Walker County; Saffold Berney Judge.

Application by the Southern Railway Company against Toulmin Cleveland and another for a rehearing under Code 1907, § 5372, after rendition of judgment for the latter. From a judgment sustaining a demurrer to the application, the applicant appeals. Affirmed.

Bestor Bestor & Young, for appellant.

Gailyard & Mahorner, and Gregory L. & H. T. Smith, for appellees.

McCLELLAN J.

The only question presented on this appeal relates to the action of the court below in sustaining demurrer to the application for rehearing, filed by defendant (appellant) under Code 1907, § 5372. The original suit sought a recovery against this appellant for the removal of sand from lands claimed by plaintiffs. There was judgment for plaintiffs, appellees. The defendant, it is said, was the successor in right and title of the Mobile & Alabama Grand Trunk Railroad Company incorporated by special act of the General Assembly of this state. Acts 1865-66, p. 405. By section 20 therein a right of way 100 feet wide over state lands was, under certain conditions, granted the incorporation. The defendant (appellant here) proceeded to trial, and tried the original suit in ignorance, it is alleged, of the grant set out in section 20. It could not and did not produce any muniment of title otherwise to the land involved in this litigation. After the trial counsel for appellant accidentally discovered section 20 of the act of incorporation cited. The application for a rehearing is based upon this discovery. The demurrer took the point that the stated facts did not bring the application within the prerequisites of the statute (section 5372) to the granting of a rehearing.

We pretermit, as unnecessary to be now decided, the question whether the title of the act of incorporation was sufficient to comprehend the grant attempted to be effected by section 20. The statute does not authorize the granting of a rehearing in every case of "surprise, accident, mistake or fraud," but fixes the additional condition that such casualties intervened "without fault" on the part of the complaining party. If the appellant succeeded to the rights and titles of the original company, it cannot be held to have been without fault in not knowing the source, extent and character of the rights...