Hendrix v. Southern Railway Co.

130 Ala. 205 | Ala. | 1900

SHARPE, J.

A railroad corporation whose property rights have passed to complainant by successive judicial sales obtained from defendant a conveyance of a right of way covering a strip of land 100 feet in width over his homestead lands. Afterwards the surveyed route was changed and the road was built over a part of the homestead lands to which the company had no deed. As to the circumstances under which this was done defendant testifies as follows: “I informed the men building the road 'that they must not cut my timber without paying for it. Calaban and Redman said they would pay me for the road through there and would pay me for the timber cut and com destroyed. I told them if if they did, it was all right, and they could go ahead building the road. Calaban said he would send me a check as soon asi he went to Rome. The money was not sent. They went ahead and constructed the road. Redman said he would see Calaban and have him send the money; that he didn’t want me to bother the hands at work on the right of way. After this I never bothered them any more except that I had a talk with O’Connor, the riding bo®, and he said Redman would pay me, and this was the last talk that I had with any of them. They were through building and had laid no track at the time I had the talk with O’Connor.” This testimony shows that defendant waived his constitutional right to be compensated for the easement before the land was taken and gave credit to the company therefor. It also leads to the conclusion that he acquiesced in the building of the road and thereby estopped himself to retake the land or recover it by ejectment after the company had in reliance on such ac-quiseence incurred the expense of building the road. N. O., etc., R. R. Co. v. Jones, 68 Ala. 48; S. & N. Ala. R. R. Co. v. A. G. S. R. R. Co., 102 Ala. 236.

As their terms indicate, the constitutional and statutory requirements respecting conveyances of the homestead, apply only when a contractual disposition of such property is sought to be made and do not prevent the erection of an equitable estoppel. The estoppel applied in cases like the present one, does not operate to convey title, but merely preeludesi the land-owner from asserting title for the purpose of obtaining a possession which would take from the railroad company its improvements as well as the easement for the operation of its trains.

Acquiescence in the building of the road is not of itself sufficient to show that defendant waived his right to be ultimately compensated for the right of way. See Thornton v. Sheffild, etc., R. Co., 84 Ala. 114; Southern Railway Co. v. Cowan, 129 Ala. 577. That right, however, cannot he enforced under the pleadings in this suit. The lack of a crossdull to compel compensation made it impracticable, if it would otherwise have been proper, for the court to provide herein for such compensation. As a general rule an answer in chancery looks only to the defeat of the bill and does not authorize the granting of affirmative relief to the defendant.—Beddell v. New England, etc. Co., 91 Ala. 325; Watts v. Eufaula Nat. Bank, 76 Ala. 474; Ketchum v. Creagh, 53 Ala. 224.

A purchaser at judicial sale is by the law charged with notice of defects in the title he buys and, therefore,, complainant 'does not occupy the position of a bona fide purchaser for value.—Lovelace v. Webb, 62 Ala. 271; Lampkin v. Crawford, 8 Ala. 156; McCartney v. King, 25 Ala. 81; Gray v. Denson, 129 Ala. 406. By its purchase at receiver’s sale it acquired only such rights as its predecessors had, and those rights being-founded alone upon defendant’s acquiescence can extend to no other land than that which has been actually taken. By the bill it is alleged in effect that the strip of land it has acquired the right to occupy is 100 feet in width. The answer denies that so much was taken, and states that complainant and those under whom it claims “have used and controlled not more than 60 feet in width over said lands,” and that on a portion of the land defendant has cultivated to within 10 feet of the railroad track. The evidence shows that by reason of cuts and fills the land used for railroad along the road is of variable width so that uniformity of width such as is designated in the decree is inaccurate as a description. Therefore, the decree will he here modified so as instead of enjoining plaintiff’s action of ejectment as to a strip of land 50 feet wide, the injunction will be applied to that part of plaintiff’s said land which before the ejectment suit commenced, was occupied by the defendant’s roadbed including its cuts, fills and barrow pits. The decree as so modified will be affirmed with the requirement that each party pay one-half the costs of the appeal.

Affirmed.