Talley v. Drumheller

• Decision Date: 12 November 1925
• Citation: 143 Va. 439
• Parties: TALLEY, ETC. v. DRUMHELLER, ETC.
• Court: Virginia Supreme Court

Page 439

143 Va. 439

TALLEY, ETC. v. DRUMHELLER, ETC.

Supreme Court of Virginia, Richmond.

November 12, 1925.

1. STARE DECISIS — Law of the Case — Case at Bar. — When the instant case was formerly before the Supreme Court of Appeals (Talley Drumheller, 135 Va. 186, 115 S.E. 517) it was decided that a joint action of detinue could be maintained by plaintiffs in error, landowners, against the defendants in error, indepenent contractors and their employers, for removing "T" rails from the several tracts of land of the landowners. That decision became the law of the case, and the question was not open to debate on a second writ of error. But if the same question should again come before the court on a like state of facts, a majority of the court desire it to be considered open for further consideration.

2. FIXTURES — Rails on Right of Way of Railroad — Trade Fixtures. — Rails laid on the right of way of a railroad company, only as incident to the use of the right of way, and with no intention that they shall remain after the easement has terminated or been abandoned, are an exception to the general rule as to chattels annexed to realty, and retain their character of personalty although affixed to the soil. It is sometimes said that they are in the nature of trade fixtures, though the decisions, that they retain their character of personalty, are not always placed on that ground.

3. FIXTURES — Rails on Right of Way of Railroad — Abandonment of Rails or Abandonment of Easement — Case at Bar. — In the instant case, an action of detinue for the removal of rails which had been used over a tramroad on a right of way over plaintiffs' lands, there was much evidence tending to show an abandonment of the easement of way by defendant, but little, if any, tending to show an abandonment of the title to the rails. A long time elapsed between the actual use of the tramway and the taking up of the rails. There were a number of breaks in the line, and while this would be important in determining whether or not the easement had been abandoned, it was not important in regard to the abandonment of the rails in the absence of other evidence of abandonment and an assertion of title to the rails by the owners of the servient estates. No act of ownership was exercised over the rails by the owners of the servient estates and no notice given to defendant toremove notice given to defendant to remove defendant had never evinced any intention to abandon the rails, and had constantly exercised dominion over them.

Held: That the presumption was that the rails remained on the land with the consent or acquiescence of the owners of the servient estates; that defendant had not abandoned the rails, and that title to them remained in him.

4. FIXTURES — Rails on Right of Way of Railroad — Abandonment of Rails — Case at Bar. — So long as no claim of title to rails on the right of way of a tramway over plaintiffs' lands was made by plaintiffs, the owners of the servient estates, no objection raised to their remaining on the right of way by plaintiffs, no notice given to defendant to remove them, and no act done by the plaintiffs which would bring home to the defendant notice that the plaintiffs intended to assert ownership over the rails, the defendant had the right to presume that the status quo of the rails remained unchanged, and was not bound to remove them within any specified time.

5. ABANDONMENT — Personal Property — Statement of Doctrine. — Abandonment of tangible personal property means that the owner thereof voluntarily relinquishes possession thereof with the intention of terminating his ownership and with no intention of vesting title in another. When such property has been so abandoned, the first person who takes possession thereof for the purpose of ownership, generally and in the absence of special circumstances, acquires title thereto.

6. ABANDONMENT — Personal Property — Lapse of Time. — Mere lapse of time and non-user, unaccompanied by other evidence of intention, are generally not sufficient to constitute an abandonment.

7. APPEAL AND ERROR — Error in Instructions — Where no Other Verdict could have been Found — Case at Bar. — Some of the instructions in the instant case given for the defendant were erroneous, still, looking to the whole evidence in the case, no other verdict than the one found for defendant could have been properly found by the jury, even under proper instructions.

Held: That the verdict could not be set aside for error in the instructions.

Error to a judgment of the Circuit Court of Amherst county, in an action of detinue. Judgment for defendant. Plaintiffs assign error.

The opinion states the case.

James R. Caskie and Evans & Evans, for the plaintiffs in error.

Geo. E. Haw and Edward Meeks, for the defendants in error.

BURKS, J., delivered the opinion of the court.

This was an action of detinue to recover certain steel tramrails, in which there was a judgment for the defendants.

When this case was formerly before this court, it was decided that a joint action of detinue could be maintained by plaintiffs in error against the defendants in error. Talley Drumheller, 135 Va. 186, 115 S.E. 517. That decision became the law of the case, and the question is not now open to debate on a second writ of error. Norfolk & W.R. Co. Duke, 107 Va. 764, 60 S.E. 96; Steinman Clinchfield Coal Corp., 121 Va. 611, 92 S.E. 684. But if the same question should again come before the court on a like state of facts, a majority of the court desire it to be considered open for further consideration.

By deeds bearing date September 4, 1867, and October 23, 1867, the defendants and those under whom they claim acquired title to a tract of land containing 800 acres, called "Wheatland," and a right of way therefrom to the James River and Kanawha canal over land subsequently acquired in different tracts by the plaintiffs, respectively, in severalty, except the plaintiff, W. E. Harvey, who acquired title from a different source. All of the plaintiffs except Harvey claim under a common source with the defendants to wit, deeds from J. J. Dillard. Harvey acquired title in 1912 from the Watts heirs, who had acquired title from Alex. Munday. The tram road hereinafter mentioned passed over the Watts land for a distance of 289 feet. The Wheatland tract contained iron ore, and the object of the deeds of 1867 was to acquire this ore and to transport it to the canal. Soon after obtaining these deeds, the predecessors in title of the defendants began mining the ore and built a tramroad from Wheatland to the canal, over which the ore was transported. Upon this tramroad steel rails were laid and the road was operated until 1891 or 1892, probably the latter date. By what authority the tramroad was laid on the Harvey tract does not clearly appear from the record, though it is stated in a bill in chancery copied in the record, to which Harvey was not a party, that the land or right of way was obtained from Charles Watts' children who were predecessors in title of Harvey. At all events, the record does not disclose that the right of way over the Harvey tract was ever called in question until the present litigation arose in 1918 when it was called in question by Harvey.

John T. Jones, whose executrix is the principal defendant in the instant case, acquired title to Wheatland and the tram road by deed dated October 1, 1904, from Nathaniel Thayer, surviving trustee, Jones having become the purchaser thereof at a foreclosure sale made by said trustee. In 1918, Jones took up and removed the steel rails from the tramroad, and the instant action was brought to recover said rails or their alternate value.

The plaintiffs based their claim to recover on the ground that Jones and those under whom he claimed had abandoned the right of way for the tramroad, and that upon such abandonment the rails reverted to the owners of the servient estates. Much evidence was taken on the subject.

Three errors are assigned: (1) Granting instructions for the defendants, (2) refusing instructions tendered by the plaintiffs, and (3) refusal to set aside the verdict as contrary to the law and the evidence. It will be unnecessary to consider the instructions seriatim for reasons hereinafter made to appear.

The trial in the lower court proceeded upon wrong principles, leading to errors in the instructions which furnished the chief topics of discussion before this court. The initial error and the one which led to others consequent thereon Was in instructing the jury that the rails of the tramroad, by reason of their attachment to the right of way, were "real estate and not personal property."

Rails laid on the right of way of a railroad company, only as incident to the use of the right of way, and with no intention that they shall remain after the easement has terminated or been abandoned, are an exception to the general rule as to chattels annexed to realty, and retain their character of personalty although affixed to the soil. It is sometimes said that they are in the nature of trade fixtures, though the cases are not always placed on that ground.

In Wiggins Ferry Co. O. & M.R. Co., 142 U.S. 396, 415, 12 S.Ct. 188, 194, 35 L.Ed. 1055, it is said: "We agree with the court below that the petitioner is not entitled to recover the value of the rails removed by the receiver from the premises on Bloody Island. They were laid there under a mere easement granted by the petitioner, and obviously with no intention that they should become a part of the realty. As between the landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for the purposes connected with such temporary possession. * * * In Van Ness Pacard, 2 Peters 137 7 L.Ed. 374, it was held that a house built by a tenant upon land, primarily for the purpose of a dairy, and...