Southern Ry. Co. v. Hall

• Decision Date: 31 October 1957
• Docket Number: 6 Div. 935
• Citation: 267 Ala. 143,100 So.2d 722
• Parties: SOUTHERN RAILWAY COMPANY v. J. T. HALL.
• Court: Alabama Supreme Court

Page 722

100 So.2d 722

267 Ala. 143

SOUTHERN RAILWAY COMPANY v. J. T. HALL.

6 Div. 935.

Supreme Court of Alabama.

Oct. 31, 1957.

Rehearing Denied March 6, 1958.

Bankhead & Petree, Jasper, for appellant.

Weaver & Snoddy, Haleyville, for appellee.

GOODWYN, Justice.

Appellee, J. T. Hall, brought a proceeding in the probate court of Winston County against appellant, Southern Railway Company, to acquire, pursuant to Code 1940, Tit. 19, §§ 56-58, a way of necessity from his lands across the railway company's right of way and tracks to Alabama Highway No. 195. From a judgment in favor of appellee the appellant appealed to the circuit court (Code 1940, Tit. 19, § 17) where the case was heard without the intervention of a jury on evidence given ore tenus. The present appeal is from the judgment there rendered in favor of appellee and from the judgment overruling appellant's motion for a new trial (Code 1940, Tit. 19, § 23; Alabama Power Co. v. Henson, 237 Ala. 561, 564, 187 So. 718).

Hall is the owner of a tract of land consisting of about 185 acres located along the west right of way line of the railway company, and not within the corporate limits of any municipality. Alabama Highway No. 195 runs along the east right of way line of the railway company opposite Hall's land. The right of way sought by Hall is a strip 15 feet wide (the limit set by § 56, Tit. 19) (increased to 30 feet by Act No. 537, approved Sept. 18, 1957) and 100 feet long running from his land to Highway No. 195, and located about midway between the north and south lines of his tract of land. There appears to be no question that no public road or highway is adjacent or contiguous to any part of his land along its west and south boundaries. The evidence discloses that there is a public crossing over the railway company's right of way from the land of one Sport Armstrong (which adjoins Hall's land on the north) to Highway No. 195, but that crossing is located about one-half mile north of the northeast corner of Hall's tract. There is no indication that said crossing is adjacent or contiguous to Hall's land nor that Hall, either individually or as a member of the public, has any right of way over Armstrong's land running from Hall's land to said crossing. There is evidence of a crossing over the railway company's right of way from Highway No. 195 to Hall's land, known as the 'clay pit crossing,' which is located to the south of the crossing sought by Hall. It is the existence of this crossing which is the determinative factor in this case.

Hall testified that he had used the 'clay pit' crossing but contends that such use was by sufferance of the railway company, which has the right to close it at any time. On the other hand, the railway company, throughout the proceedings, has taken the position that Hall already has access to the highway from his lands by way of the 'clay pit' crossing and should not be allowed to burden the company's right of way with an additional crossing, simply for the purpose of providing Hall with a more convenient means of access. It is apparent from the pleadings and evidence that the railway company has not only recognized Hall's right to use the 'clay pit' crossing but actually contends that it is a public crossing, in use as such for some 30 years or more. In other words, the only party questioning Hall's right to use it is Hall himself. What was said in Davenport v. Cash, 261 Ala. 380, 382, 383, 74 So.2d 470, 471, is of particular significance here, viz.:

'* * * In the case of Carter v. Barkley, 1908, 137 Iowa 510, 115 N.W. 21, 22, the court said:

"It is undoubtedly true that, if the plaintiffs had either a public or a private way to their land, they could not maintain this proceeding; but the statute evidently does not contemplate that the owner who claims to have no way to his land shall be compelled, before inviting the aid of the statute, to try one or more lawsuits for the purpose of finding out whether he has a way or not. The statute, in our judgment, should be construed to mean that, unless a party has a way, either public or private, which is unobstructed and unquestioned, he may institute proceedings under the statute.'

'Appellant cites this case as authority for the proposition that he should not be compelled to litigate the public character of the 'Old Bankhead Church Road.' But it must be noted that the appellant is the only one who contends that this old road is not a public one. It is a way out from appellant's land and over appellee's land, and the latter contends it is a public road.

* * *

* * *

'And in Strawberry Point District Fair Society v. Ball, 1920, 189 Iowa 605, 177 N.W. 697, where it was shown that an absolute private right of way was tendered to the petitioner, his right was denied. Then in the later case of Anderson v. Lee, 1921, 191 Iowa 248, 182 N.W. 380, 381, the Carter case was cited authoritatively even though the decision did hold that a ten-foot private way was not such a reasonably adequate way as would defeat the right to condemn.

'The rule in the Carter case seems to us to be sound, and, though we agree with counsel for appellant that in order to discharge his burden of proving a negative, i. e., that his land is not 'adjacent or contiguous to any public highway,' the petitioner under our statute should not be compelled to unsuccessfully litigate every conceivable route and 'ancient trailways,' in the instant case, the fact that the appellant is the only party claiming that the 'Old Bankhead Church Road' is not a...