Vicksburg & Meridian R. R. Co. v. Barrett

• Decision Date: 28 April 1890
• Citation: 7 So. 549,67 Miss. 579
• Parties: VICKSBURG & MERIDIAN R. R. CO. v. TOM BARRETT ET AL
• Court: Mississippi Supreme Court

7 So. 549

67 Miss. 579

VICKSBURG & MERIDIAN R. R. CO. v. TOM BARRETT ET AL

Supreme Court of Mississippi

April 28, 1890

FROM the circuit court of Hinds county, first district, Hon. J. B CHRISMAN, Judge.

On the 7th day of October, 1887, the Vicksburg & Meridian Railroad Company instituted this action of ejectment against the appellees, Tom Barrett et al., for the possession of a strip of land in the city of Jackson, adjoining the railroad, and claimed by the company as a part of its right of way, under a conveyance from Perry Cohea, made in March, 1837. Defendants also claim under Cohea, by virtue of a deed made by him to one Morris in 1842. They hold through conveyances from Morris.

At the point in controversy the railroad runs from southeast to northwest, and the land in suit is situated on the southwest side of the road. On the trial the evidence showed that the railroad right of way, as at present opened and used, was located several years after the deed from Cohea to the company, and prior to his conveyance to Morris. The railroad company has never been in possession of the land in controversy, but defendants, and those under and through whom they claim, have been in continuous possession since about thirty-six years before this suit was brought. About the year 1885 the company notified the defendants that it required for the purposes of the road, all the land within fifty feet of the centre of the track, and demanded the removal of their houses and fences from the strip in controversy. The testimony shows that the ground is necessary for the purposes of the railroad. The other facts necessary to an understanding of the case are stated in the opinion.

The court instructed the jury to find for the defendants, and plaintiff appealed.

Judgment affirmed.

Nugent & McWillie, for appellant.

Long after the conveyance of the right of way to the railroad company, Cohea, without consulting the company, laid off and sold lots impinging upon the right of way, and the strip of land in controversy constitutes part of one of them.

The question in this case is as to the time the statute of limitations began to run. Looking to our deed, we find a positive grant of the right of way, not to exceed 100 feet wide, with the right to enter upon adjacent lands and take earth, stone and gravel. This deed was for a valuable consideration and conveyed a dominant easement. When the railroad was first laid out, a few feet in width only would be required, but the growth of the city and increased business rendered a broader way indispensable. This was contemplated by Cohea in the grant, and the deed was notice to persons that the company could widen its right of way to the limit of 100 feet when the demands of business required it. All subsequent grantees of Cohea were effected with notice of this right by the registration of our deed. If Cohea himself were defendant, it would not be pretended that he could question our right, and appellees merely stand in his place. Their occupation could not set the statute of limitations in motion, nor would our mere nonuser of additional land deprive us of any right.

The erection of improvements by defendants did not give us notice that there was any adverse holding. The presumption is that the parties entered in full recognition of the right of the railroad company, and, up to the time of the demand for possession, their holding could not be considered as adverse in any legal sense.

The easement created by the deed cannot be lost by mere nonuser. Smyles v. Hastings, 22 N.Y. 217; White v Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pick. 106; Owen v. Field, 102 Mass. 90; Day v Walden, 46 Mich. 575; Polson v. Ingram, 22 S.C. 541.

The right of the railroad was fixed in a defined course. The centre line was established, with the right, given by the deed, to establish at any time a way not exceeding 100 feet wide. The case does not come within the rule announced in Jennison v. Walker, 11 Gray, 426.

There is absolutely nothing to show that the company ever intended to restrict its right to the land actually occupied by the road-bed.

For the existence of an easement there must be two tenements, the dominant and the servient, and these must be held by different persons. The grantor's heirs own the fee in the servient so far as the road-bed is concerned, and the appellees that to the land outside the road-bed and lying within the limits of our right of way. Adverse user of the servient estate with absolute non-user of the dominant, when continued for the term of the statute of limitations, will give rise to the presumption of a release. Hoffman, v. Savage, 15 Mass. 130; Smyles v. Hastings, supra. Even then, the possession must be strictly adverse to the easement. In all cases it is a question of fact for the jury to say whether the particular possession has been hostile to the existence of the easement, under a claim of right inconsistent therewith, and under such circumstances of notoriety as to be adverse, Horner v. Stillwell, 35 N.J.L. 307.

The grant of appellant's right of way is perpetual. It can only be lost by a release or an actual abandonment. R. R. Co. v. Ruggles, 7 Ohio St. 1.

In equity, possibly, the expense of removing the improvements might be east upon the company, but this does not contravene our legal rights. We have not released or abandoned anything. The law of estoppel cannot apply here for manifest reasons. Defendants and those from whom they claim took the land in controversy in its existing condition, subject to the burdens imposed upon it. Pomeroy v. R. R. Co., 25 Wis. 644; Chance v. R. R. Co., 22 Am. & Eng. R. R. Cases, 170.

Where the owner of land conveys it to a railroad company, which uses only a portion, and the owner remains in possession of the other, such possession will be deemed to be permissive and not adverse to the company, and the statute of limitations will not apply. R. R. Co. v. Oyler, 5 Am. & Eng. R. R. Cases, 401; Jackson v. Burton, 1 Wend. 341; Higginson v. Mein, 4 Cranch, 419. To make the statute of limitations available, there must be hostile and adverse possession for the period prescribed. Snell v. Levitt, 39 How. [N. Y.] 327; 54 Cal. 547; Hicks v. Steigleman, 49 Miss. 377; Rothschild v. Hatch, 54 Ib. 554.

A permissive use of part of the easement by appellees when no inconvenience results to the company is not a surrender of its rights. This may suspend, but does not abridge the right of appellant to demand a restoration when the interest of the railroad demands its use. R. R. Co. v. M' Caskill, 25 Am. & E. R. R. Cases, 90. Cohea had the right to use so much of his land as was not for the present necessary for railroad purposes, and this use must be construed as permissive until the contrary is shown. This, we think, has not been done.

This case is distinguishable from R. R. Co. v. Houghton, 18 N.E. 301. In that case the court did not seem to think that the railroad's right of way was an easement, but here the conveyance imparts that exclusive character to the grant. Proprietors v. R. R. Co., 6 Am. R. 181; Gibbs v. Drew, 26 Ib. 700; R. R. Co. v. Doe, 114 U.S. 350; R. R. Co. v. Allen, 22 Kans. 285, s. c. 31 Am. Dec. 192; Washburn on Easements, 159, 214; 1 Redf. on Railways, 247; 34 N.H. 282; 55 Pa. 16; 29 Mo. 141; 42 Ala. 83; 46 N.Y. 556; 68 Ib. 591; 104 Mass. 1.

The case of Slocumb v. Railroad Co., 57 Iowa 675, is an authority precisely in our favor. See, also, Barlow v. R. R. Co., 29 Ib. 276; Yackle v. Nace, 2 Wheat. 123; 27 N.Y. 217; Fox v. Hart, 11 Ohio 414; Noll v. R. R. Co., 32 Iowa 66, s. c. 10 Am. R'y Rep. 18; 21 Conn. 294; 14 Ohio 147; 30 Const. 511; 30 Iowa 9.

The easement in this case was not acquired by prescription, but by express grant, and a non-user does not extinguish it if the owner of the servient estate does no act which prevents the use. 2 Wash. Real Prop., 370; Arnold v. Stevens, 24 Pick. 106; Ricard v. Williams, 7 Wheat. 109.

It was inoperative and left the owner of the soil free to make such use of it as his interest might require. Thompson v. Gregory, 4 Johns. 81. Cohea's deed gave him the right to use the land in any way compatible until the full enjoyment of the casement became necessary. 20 F. 590; Martin v. Canal Co., 59 N.H. 154; 4 Lead. Ca. Real Prop., 127; 6 Am. & E. Cyclopedia of Law, 149.

When it is said that an easement may be lost by abandonment, it is meant that it is extinguished. 123 Mass. 567. We have all along been and still are in the enjoyment of this easement. 41 Me. 34, The only question is, can we demand the extension of our way and the limits of our deed, and there can be no negative answer.

The land is now needed for tracks, and in order to protect the public and the railroad from accidents likely to occur on account of the proximity and position of appellee's buildings thereon.

D. Shelton, for appellees.

Proof that the defendants' buildings are too near the track, has nothing to do with the plaintiff's right to recover. If the plaintiff has shown that the buildings are too near, the only thing to do is to move the railroad further from the houses.

It will be noticed that plaintiff's deed does not convey absolutely a right of way 100 feet wide, but only gives the right to locate a way not to exceed that width. No definite right was granted. The deed is indefinite as to direction location and width, and it only became definite by the actual location and construction, which could be exercised but once. After it was so exercised, the road was located. Cohea sold the land in controversy, and fixed the boundaries by the line of the railroad as thus located. That was nearly fifty years before this suit was brought. The railroad company has never been in possession of the land in question, and...