Southern Ry. Co. v. Clarke
Decision Date | 10 April 1919 |
Docket Number | 1 Div. 93 |
Citation | 203 Ala. 248,82 So. 516 |
Parties | SOUTHERN RY. CO. v. CLARKE et al. |
Court | Alabama Supreme Court |
On Rehearing, June 30, 1919
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Action by Norborne R. Clarke and others, executors, against the Southern Railway Company. From judgment for plaintiffs defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Reversed and remanded.
Stevens McCorvey & McLeod and Bestor & Young, all of Mobile, for appellant.
Harry T. Smith & Caffey, of Mobile, for appellee.
The reported cases dealing with the right of a railroad company to excavate, remove, and use the soil and other materials on its right of way, are not entirely harmonious.
The nature and limitations of the rights acquired by a railroad company by virtue of its condemnation of a right of way for the construction and maintenance of its road are discussed and some authorities cited, in N., C. & St. L. Ry. Co. v. Karthaus, 150 Ala. 633, 43 So. 791; but the points of decision there were that the company had no right to excavate sand from its right of way for the purpose of selling it, and that any sale of such material constituted a conversion for which trover would lie.
The editor of the Lawyers' Reports Annotated has collected and reviewed the cases in his note to Cleveland, etc., R. Co. v. Hadley, 179 Ind. 429, 101 N.E. 473, 45 L.R.A. (N.S.) 796, and he concludes:
In 15 Cyc. 603, C, the rule is thus stated:
"A railroad company having acquired a right of way is entitled to use so much of the timber, earth, gravel, stone, and other materials thereon as may be necessary for the proper construction or repair of its roadway, either in adjacent localities or elsewhere; but the company cannot sell or otherwise convert such materials to its own use, except for the purposes above stated."
A few of the leading cases referred to are Brainard v. Clapp, 10 Cush. (Mass.) 6, 57 Am.Dec. 74; Chapin v. Sullivan, 39 N.H. 564, 75 Am.Dec. 237; Lyon v. Gormley, 53 Pa. 261; Aldrich v. Drury, 8 R.I. 554, 5 Am.Rep. 624; Hendler v. Lehigh Valley R. Co., 209 Pa. 256, 58 A. 486, 103 Am.St.Rep. 1005; Hendrix v. So. Ry. Co., 162 N.C. 9, 77 S.E. 1001.
Our examination of these and other cases leads us to the conclusion that the distinction stated by the editor in the note to 45 L.R.A. (N.S.) 796, supra, is well founded both upon reason and authority; and we hold that earth and other materials, not excavated of necessity in the course of construction, may not be excavated and removed for use in the construction or maintenance of the roadway or other appurtenances or improvements, beyond the boundaries of the particular tract which was the subject of a separate condemnation. As said by the Supreme Court of Pennsylvania:
Hendler v. Lehigh V.R. Co., 209 Pa. 256, 58 A. 486, 103 Am.St.Rep. 1005.
We find nothing in the record of the proceedings under which defendant's predecessor, the Alabama Grand Trunk Railroad Company, condemned the tract of land from which the soil here in question was taken, which would extend the rights of defendant in this regard beyond the limitations of the general rule as above stated.
The giving and refusal of instructions to the jury were in accord with our theory of the law, and the exceptions to those rulings cannot be sustained.
We find no evidence from which the jury could have inferred that Augustine Meaher, acting as the authorized agent of plaintiffs, gave defendant authority to dig and remove the soil, and instructions requested on that theory of the case were properly refused.
The measure of damages, as held in N., C. & St. L. Ry. Co. v. Karthaus, 150 Ala. 641, 43 So. 794, was the value of the soil at the place of conversion, which was the place where it was first appropriated to an unlawful use--and not at the time and place of its severance. The reason given is that its digging and removal are per se lawful, and that conversion consists only in the final act of misappropriation. The instruction that damages should be based on the value of the soil immediately after its severance was properly refused.
Defendant excepted to several portions of the court's oral charge. The record, however, fails to show that their exceptions were seasonably taken, i.e., before the jury retired; and for that reason they cannot be sustained. Carter v. T.C.I. & R.R. Co., 180 Ala. 367, 61 So. 65.
Plaintiff's witness Robertson testified that delivering dirt to any point in Mobile costs from a dollar to a dollar and a half a load, and never less than a dollar. On cross-examination he stated that the price named included labor and team and everything, and that if he paid a dollar for the dirt he would charge two dollars, and that he himself charged a dollar and a half or a dollar and a quarter a load.
Defendant, on cross-examination, propounded to him the following questions:
These questions were excluded as irrelevant, on...
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