Southern Ry. Co. v. Sanford

• Decision Date: 18 November 1954
• Docket Number: 6 Div. 514
• Citation: 262 Ala. 5,76 So.2d 164
• Parties: SOUTHERN RAILWAY COMPANY v. John SANFORD. SOUTHERN RAILWAY COMPANY v. Eli SANFORD. SOUTHERN RAILWAY COMPANY v. Alta MANUEL. -516.
• Court: Alabama Supreme Court

Page 164

76 So.2d 164

262 Ala. 5

SOUTHERN RAILWAY COMPANY v. John SANFORD.

SOUTHERN RAILWAY COMPANY v. Eli SANFORD.

SOUTHERN RAILWAY COMPANY v. Alta MANUEL.

6 Div. 514-516.

Supreme Court of Alabama.

Nov. 18, 1954.

Bankhead & Skinner,Jasper, for appellant.

J. L. Stephenson, Parrish, Powell & Wilson, Jasper, for appellees.

LAWSON, Justice.

Southern Railway Company, as the successor to Northern Alabama Railway Company, has maintained railroad tracks through the Town of Parrish, Walker County, Alabama, for a number fo years. The two tracks with which we are presently concerned may be said to run in a northerly and southerly direction. North of the depot the two tracks run said by side in a cut, in which they were placed a number of years ago.

In 1948 the Southern Railway Company widened the cut so as to make it extend eastward a distance of approximately fifty feet from the center of the east track.

John Sanford brought suit in the circuit court of Walker County to recover damages from the Southern Railway Company, claiming that in its widening operation the defendant cut and removed from his lot a strip of land of which he was in possession. John Sanford's brother Eli and his sister, Mrs. Alta Manuel, separately brought similar suits against the Southern Railway Company.

Each of the suits involves a separate town lot, but because the lots adjoin and because of the similarity of the issues involved, the plaintiffs and the defendant agreed that the three cases be tried together before the same jury.

The trial resulted in verdicts and judgments in favor of the plaintiffs. Motion fro new trial filed by the defendant in each case having been overruled, it has appealed to this court.

By agreement of all the parties to the litigation, we entered an order consolidating the three appeals and submission in this court was on one record.

Submission was had on the merits and on motion of appellees 'to strike the Bill of Exceptions filed in this cause and affirm the judgment rendered therein' and on affidavits pertinent to the motion.

On Motion to Strike

The grounds of the motion to strike are all to the effect that the appellant failed to comply with the provisions of § 822, Title 7, Code 1940, which section relates to bills of exceptions.

Use of bills of exceptions in cases at law in the circuit courts of this state was abolished by an act approved July 12, 1943, General Acts 1943, p. 423, which act became effective September 18 1943. That act, as amended by an act approved September 12, 1951, General Acts 1951, p. 1527, provided the method of presenting to this court on appeal the testimony adduced at the trial below; that is, by including in the record a transcript of the evidence made out and certified by the court reporter. See Dewrell v. Kearley, 250 Ala. 18, 32 So.2d 812; Jones v. Mullin, 251 Ala. 501, 38 So.2d 281 Terry v. Gresham, 254 Ala. 3498 48 So.2d 437; Jones v. Thomas, 255 Ala. 506, 52 So.2d 393. The provisions of an act approved June 10, 1953, General Acts 1953, p. 122, have no application to this case inasmuch as this appeal was taken before that act became effective.

The motion to strike is clearly without merit, since it is based solely on a failure to comply with the statutory provisions which have no application to the instant appeal.

On the Merits

We will sometimes treat the questions presented for our consideration as if only one case was involved, inasmuch as the pleadings in the three cases are identical in all material respects and, as we have heretofore indicated, the cases were tried together. We will so treat the assignments of error made in each case challenging the action of the trial court in overruling appellant's demurrers.

Court 1 of the complaint claims damages of the defendant 'for a trespass by the defendant, their agents, servants or employees while acting within the line of their duty and scope of their authority as such agents, servants or employees' etc. We are of the opinion that Count 1 is in trespass and not in case. The quoted averment is the legal equivalent of a charge that the act complained of was done by defendant, acting by and through its agents, servants or employees. Collum Motor Co. v. Anderson, 222 Ala. 643, 133 So. 693. And it has been held in several cases that a count which alleges the commission of trespass by defendant acting by and through an agent, servant or employee is one in trespass. Edwards v. Russell, 222 Ala. 484, 133 So. 3, and cases cited; Trognitz v. Fry, 215 Ala. 609, 112 So. 156. Cf. City Delivery Co. v. Henry, 139 Ala. 161 34 So. 389, wherein it is held that a count so framed, but charging a negligent act, is in case. In Peoples Furniture Co. v. Wilson, 233 Ala. 578, 173 So. 85, we pretermitted as unnecessary to a decision the question as to whether Count 4 in that case was in trespass or in case.

In Count 2 it is averred: '* * * the defendant while acting through its servants, agents or employees while they were acting within the line of their duty, and scope of their authority as such agents, servants or employees, wantonly, wilfully and with an open disregard for the rights of others, trespassed upon the following tract of land, viz:' etc. Count 2 is in trespass. The wanton and willful wrong thus averred is the wanton or willful act of the defendant itself as distinguished from the wrong of an agent, servant or employee. City Delivery Co. v. Henry, supra; Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A.,N.S., 389. See W. E. Belcher Lumber Co. v. York, 245 Ala. 286, 17 So.2d 281, and cases cited.

Grounds of demurrer based upon the insufficiency of averment as to the date of the alleged trespass were overruled without error. Alabama Midland Ry. Co. v. Martin, 100 Ala. 511, 14 So. 401. Likewise there was no error in overruling grounds of the demurrer taking the point that the lands referred to in the complaint were not described with sufficient certainty. The description of the premises was sufficient to apprise the defendant of the nature of the lands involved and was not misleading. Elmore v. Fields, 153 Ala. 345, 45 So. 66; Hodges & Hewlett v. Martin, 211 Ala. 505, 101 So. 55.

Reversible error is not made to appear in the action of the trial court overruling the demurrer, since we find no merit in those grounds of demurrer asserted and argued in brief. Those grounds not treated in brief are presumed waived. Conner v. State ex rel. Perry, 211 Ala. 325, 100 So. 474.

There are a number of assignments of error which take the point that the trial court erred to a reversal in refusing to give the affirmative charges requested in writing by the defendant.

In considering the question as to whether the trial court erred in refusing such charges, we must view all of the evidence in the light most favorable to the plaintiffs, regardless of any view we may have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more proper. Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d 323, and cases cited.

The plaintiffs claimed title to the strip of land which admittedly the defendant cut and removed. But we will not undertake to set out their claim of title, for the tendencies of the evidence are to the effect that the plaintiffs were in the actual possession of the strip of land here involved and in actions in trespass to realty, as here involved, the gist of the action is the injury to plaintiff's possession, and possession, whether founded on a good or bad title, will support the action against a stranger or wrongdoer. Story v. McWhorter, 216 Ala. 604, 114 So. 206; Sadler v. Alabama Great Southern R. Co., 204 Ala. 155, 85 So. 380.

The Southern Railway Company defended these suits on the ground that it owned the strip of land involved as a part of its right of way.

It is a perfect defense in an action of trespass quare clausum fregit to show that the defendant owns the land in question and that he had the right to enter. Southern Ry. Co. v. Hayes, 183 Ala. 465, 62 So. 874; Sadler v. Alabama Grest Southern R. Co., supra; Lacey v. Morris, 215 Ala. 302, 110 So. 379; Story v. WcWhorter, supra; Landrum v. Davidson, 252 Ala. 125, 39 So.2d 662; Womble v. Glenn, 256 Ala. 374, 54 So.2d 715.

The burden of proving title rested upon the defendant. Heath v. Williams, 25 Me. 209, 43 Am.Dec. 265; Cathcart v. Mattews, 91 S.C. 464, 74 S.E. 985; 63 C.J 1003, Trespass, § 190, 87 C.J.S., Trespass, § 86; 52 Am.Jur. 889-890, Trespass, § 77.

The defendant, as successor to the Northern Alabama Railway Company, claimed title to the strip of land in question under a conveyance from Thomas A. Christian and wife ot the Northern Alabama Railway Company, bearing date of January 19, 1900. The description in that instrument reads as follows:

'Beginning at the M. M. Stephenson line thence S to intersect the right of way of the Southern railway at Parrish eighteen hundred and fifty feet long and one hundred feet wide containing four acres and 25 hundredth of an acre

Blue Print attached

The mineral and all commonly contained in a mineral right...