Southern Ry. Co. v. Cowan

• Court: Supreme Court of Alabama
• Writing for the Court: HARALSON, J.
• Citation: 129 Ala. 577,29 So. 985
• Parties: SOUTHERN RY. CO. v. COWAN.
• Decision Date: 11 April 1901

29 So. 985

129 Ala. 577

SOUTHERN RY. CO.
v.
COWAN.

Supreme Court of Alabama

April 11, 1901

Appeal from chancery court, Etowah county; Richard B. Kelly, Chancellor.

Bill by C. R. Cowan against the Southern Railway Company to have deed conveying right of way over a homestead declared void, and for assessment of damages for the use of such right of way. Decree for complainant, and defendant appeals. Affirmed.

The facts averred in the original bill show that the complainant, during his lifetime, was seised and possessed of 300 acres of land in Etowah county upon which he resided and made his home. That on August 12, 1886, while so residing upon said land, he executed a deed to one Printup, as president of the Rome & Decatur Railroad Company, conveying a strip of land, not to exceed 100 feet in width from northeast to southwest across the said 300-acre tract, for the purpose of building and operating a railroad of said company across said land; that at said time, the complainant, who was the grantor in said deed, was a married man, residing with his wife and family upon said lands, and that his wife did not join with him in said conveyance; that at the time of the execution of said deed, it was represented to the grantor that the line of railroad had been surveyed across said lands, and that the road would be built upon a certain line upon it pointed out to the complainant, and which was described in the bill; and that the deed was intended to convey the strip of land along the line then pointed out; but that said railroad company located and constructed its line of railroad at a different point. It was further averred in the bill that the Rome & Decatur Railroad Company built its railroad during the year 1886, and that said railroad company and its successors have been in possession of said strip of land ever since, operating a railroad through and upon it; that said strip of land occupied by the railroad is 100 feet wide; that the Rome & Decatur Railroad Company sold to the East Tennessee, Virginia & Georgia Railroad Company, and that the latter company sold to the Southern Railroad Company, the defendant in the present bill; that the defendant is now operating a railroad through and upon said strip of land. It was further averred in the bill that upon May 7, 1895, the complainant W. N. Cowan filed his declaration of claim of homestead in the office of the judge of probate of Etowah county, selecting and claiming out of the tract of 300 acres on which he resided, 160 acres, as a homestead; that the line of railroad in question was located across this 160 acres. It was also averred in the bill that the Rome & Decatur Railroad Company forcibly took possession of the strip of land different from that conveyed in the complainant's deed and built its railroad thereon.

The prayer of the bill was that the deed conveying the strip of land to the railroad company be declared null and void, and that a decree be rendered that the defendant and those under whom he claimed, wrongfully took possession of said lands, and that a reference be had to ascertain how much of the complainant's land had thus been appropriated, its value and the interest thereon; the damage to the balance of the land and the value of the use and occupation of said strip; and that the defendant be required to pay the aggregate of said several sums to the complainant, and that if the defendant fails or refuses to pay said sum, that an injunction be issued to restrain the defendant, its officers and agents, from operating the said railroad over, through and upon said strip of land, until the defendant pay or cause to be paid complainant's damages and cost of suit be ascertained. There was attached to the bill as Exhibit A the deed from W. N. Cowan to D. S. Printup, as president of the Rome & Decatur Railroad. This deed, after reciting that the Rome & Decatur Railroad was about to construct its railroad from Rome to Decatur, which was to pass through the S. 1/2 of section 9, township 11, and range 7, then continued as follows: "Now, in consideration that the said railroad of the said Rome and Decatur Railroad Company shall be built and for and in consideration of the sum of _____ dollars paid, the receipt whereof is hereby acknowledged, W. N. Cowan, of the county of Etowah, state of Alabama, does hereby give, grant and convey unto D. S. Printup, president, etc., of the said R. & D. R. R. Co., his successors or assigns, in fee simple, a strip of land along such line as may be adopted by the said company, of sufficient width through said land, the premises afore described, conveniently to build said railroad, as well as all side tracks and turnouts, and necessary and sufficient for all purposes of keeping up and repairing the same, not to exceed fifty feet from the center of the main line to each side, making said strip not to exceed one hundred feet, full width, together with all the rights and appurtenances to said strip of land belonging to appertaining," etc.

Pending this bill, the complainant died. Thereupon, Catherine R. Cowan, as administratrix and widow of William N. Cowan, deceased, and A. J. Wilson, as administrator of the estate of said William N. Cowan, deceased, and the heirs at law of said William N. Cowan, filed a bill of revivor and supplement, on February 27, 1896, wherein the death of the original complainant was averred, and it was further averred that the lands, which had been set apart to the original complainant as a homestead, were duly set apart to Catherine R. Cowan, widow of the deceased, W. N. Cowan, as her homestead, under the statute; and that said lands were so set apart to her under proper proceedings of the probate court. It was then prayed in said bill of revivor and supplement that the said suit should stand revived in the name of the complainants in the bill of revivor and supplement, and that said suit should be carried on and prosecuted...