Wilmot v. Yazoo & Mississippi Valley Railroad Co.

• Decision Date: 16 January 1899
• Citation: 24 So. 701,76 Miss. 374
• Parties: J. L. WILMOT v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO
• Court: Mississippi Supreme Court

24 So. 701

76 Miss. 374

J. L. WILMOT v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO

Supreme Court of Mississippi

January 16, 1899

November 1898

FROM the circuit court of Washington county, HON. F. A MONTGOMERY, Judge.

Wilmot the appellant, was the plaintiff in the court below. The railroad company was defendant there. Wilmot sued the Yazoo &amp Mississippi Valley Railroad Company in an action of trespass in the sum of $ 5, 000 for the alleged wilful and wanton destruction, in June, 1896, of his crops of cotton growing upon land immediately adjacent to the roadbed of said defendant company and on either side thereof. And in a second count the plaintiff claimed of the defendant the sum of $ 5 000 for entering in June, 1896, plaintiff's plantation and laying its cross-ties and iron rails across the land of plaintiff, and of disseizing him of that portion thereof whereon lies the cross-ties and rails of said railroad.

The defendant pleaded that, prior to the grievances complained of, the defendant had acquired title to a strip of land one hundred feet wide through plaintiff's land by a deed from Wingfield, a former owner thereof, to defendant's predecessor in the title, for the construction and operation of a railroad thereon, and upon this right of way the defendant laid down cross-ties and rails, and that the crops destroyed by the defendant were growing upon this right of way.

The plaintiff demurred to this plea on the ground that it did not show a use of the land inconsistent with the estate conveyed and the proper operation of the railroad, and the court overruled the demurrer. Plaintiff thereupon replied that for more than ten years before the bringing of suit, and of the commission of the trespasses complained of, and at the time of said trespasses, said plaintiff had been in the actual, adverse and uninterrupted possession of the land upon which the crops were growing when cut down and destroyed as set forth in said plea, and claiming to be the owner thereof. The plaintiff asked leave to file four other replications, unsupported by the affidavit of merits required by § 692, code 1892, which the court refused to allow. The defendant demurred to the replication, setting up the statute of limitations, on the ground that the matters therein contained related only to the plaintiff's ownership of the land and did not affect defendant's easement. The demurrer was sustained, and, the plaintiff declining to reply over, judgment was given for the defendant, and the plaintiff appealed.

Reversed and remanded.

J. H. Mynn, for appellant.

The court erred in overruling the demurrer of the appellant to the appellee's special plea. The appellee acquired by the deed only an easement "for the purpose of constructing and operating a line of railroad and to do such things as were necessary and convenient in constructing and operating said road." The special plea of the appellant sets up that the crops were cut because "it deemed it or considered it inconvenient and unsafe in the operation of the road to have cotton grown on the right of way, " etc., regardless of whether or not it was inconvenient or unsafe in fact. The appellee contends that its right of possession is exclusive, dependent alone upon its wishes in the matter. We say that such is not the law. Beach on Railroads, 789; Lewis on Eminent Domain, sections 586, 587.

Appellee's right is measured by its deed, and this deed does not say that appellee shall do such other things as it may deem necessary and convenient, but such as are necessary and convenient.

The position of appellee makes its will or whim supreme and denies an appeal to either court or jury. Suppose the appellee should consider it convenient to sod its right of way with cocoa grass, or Bermuda grass, or Johnson grass, then, under its contention, it would have a right to do it. Lewis, in his work on Eminent Domain, says that it is a question of fact whether the necessities or conveniences of railway companies require exclusive possession to be determined just like any other fact. But the appellee says not. The deed to appellee conveys only an easement.

An examination of the paper filed with the plea, which the railroad sought to induce the appellant to sign, shows that it is not in fact necessary for the convenient operation of the railroad that the land should not be planted in cotton, but it wanted to derive a consideration for the use of this land which it had no right to. It had no right to rent or lease the land, but it sought to impose on appellant the duty of keeping up its fence for the use of the land.

I am not going out of the record to say that the court knows that throughout the State of Mississippi nine-tenths of the tillable lands along railroad rights of way are cultivated, and, when cultivated in cotton, are less liable to fire than the grass growing on the uncultivated lands; and, furthermore, that where lands are not cultivated they are allowed to grow up in grass. As a fact it is not more convenient or safer to have the lands uncultivated, and the appellee, by an expression of its will, cannot make that unsafe which is safe, or make that inconvenient which is convenient.

But if I be mistaken in the foregoing, the demurrer sets up that the appellant was in the possession of the land at the time of the trespass by the appellee. This being the case, no matter what were the rights of the appellee under its deed, it had no right to forcibly destroy appellant's crop. These crops appellee allowed to be planted, and it waited until June before destroying them. If its contention, that it had a right to exclusive possession, be sound, why did it not enjoin the appellant, or prosecute him for trespass? In Sedgwick & Wait on Trial of Title to Land, it is said (sec. 94): "The forcible entry of the owner himself, and still more the entry of any other person, whether forcible or not, is unlawful."

The court erred in sustaining the demurrer of the appellee to the first replication of the appellant. This replication sets up that for more than ten years prior to said trespass appellant had been in the actual, adverse and uninterrupted possession of the land upon which the crop was growing, claiming to be the owner thereof. This vested title to the land on which the cotton was growing, regardless of the deed which appellant had obtained from Wingfield. Jones v. Brandon, 59 Miss. 585.

Appellee contended that the allegations of said replication did not exclude the easement of the appellee. But the court will see that said allegation set out absolute ownership and continued possession, and called for a denial.

Jayne & Watson, on the same side.

Counsel for appellee dwells at length upon the holdings of the courts concerning the liability of railroads for fires communicated from rights of way, and points out that the negligence complained of in that class of cases is an accumulation of inflammable material on the rights of way. They do not seem to recall the fact that, in every case of that class, it became an issue of fact for the jury as to whether the material accumulating on the right of way was inflammable at the time of the fire, or was the cause of the communication of the fire. The special plea of appellee does not aver that, as a fact, the crops cut down were such as to endanger the operation of its railway, but, on the other hand, alleges that it "considered it inconvenient and unsafe in the management and operation of its railroad, " gave notice, etc. In this case it asked the court to hold a line of conduct persisted in by the holder of the fee to be a menace to the safety and convenience of the operation of their railway, because it is of opinion that the same is such a menace. That is to say, it requests the court to give the force of law to such opinion, without any allegation as to the facts upon which the opinion was based. To illustrate: Suppose a suit has been brought against this railway for setting fire to property of appellant adjacent to its right of way, and the declaration alleged that the fire was communicated by growing crops, would not appellee have defended on the ground that the nature of the crop, and that the stage of its development at the time--to wit, the month of June--would have rendered it impossible for fire to have thus been communicated, the crops then being green? The court will see from this that, as a matter of fact, at the time the crop was cut it could not have been a menace to the safety and convenience of the operation of appellee's railway. But the trial court gave full force of law to the opinion of the appellee as to the danger arising from the crop in the month of June, when the very nature of the crop, and the stage of its development possible in that month in our climate, demonstrates the fallacy of such an opinion.

Suppose that the appellee had been driving along the right of way in question, and appellant had forcibly ejected him therefrom, and destroyed his conveyance and injured his team, and, thereupon, appellant had brought suit for damages resulting from such act; that the appellee defended on the ground that, in its opinion, the act of appellant endangered the convenience and safety of the management of its railway. Would the court say judicially that the mere opinion of appellee was sufficient to justify its act, or would the facts as to the time, manner and course of appellant's travel be necessary subjects for consideration by the court, in order that it might adjudge as to whether there was any danger or menace to the operation of appellee's railway?

We think that the plea of appellee should have averred that the crops destroyed constituted a menace at the time of the destruction thereof, to the operation of its railway, and upon such...