Illinois Central Railroad v. Hoskins

80 Miss. 730 | Miss. | 1902

Terral, J.,

delivered, the opinion of the court.

Samuel W. Hoskins brought an action of ejectment in the circuit court of Lincoln county against the Illinois Central Railroad Company for the N. half of the S. W. quarter of section 6, township 7 N., range 9 E. Two thousand five hundred dollars was demanded for the use and occupation of it by defendant. The defendant pleaded the general issue, ami gave notice of valuable improvements put upon the land by it to the amount of $100,000. These improvements constitute the roadbed and track of about 1,000 feet across said land, being a part of its spur line from Brookhaven to a gravel pit beyond the same. The plaintiff had a recovery for his land, and also for $1,800 for the use and occupation of it for six years, with an allowance of $300 to defendant for its improvements. From a judgment entered in conformity with this verdict the Illinois Central Railroad Company appeals. The $1,800 allowed for rent to plaintiff arose, as it is claimed, by reason of the freights which the .company should have received from hauling gravel and lumber taken at the east end of the spur road over the spur line and over its main line, whithersoever carried; one-third of which freights, it is asserted, should be paid to plaintiff, and which third was estimated, or rather guessed, to be $1,800. The $300 allowed to defendant for valuable improvements is the outcome of this 1,000 feet of railroad on plaintiff’s land, which the evidence of a witness for the plaintiff showed it must have cost the defendant $2,000 to construct, while that of a witness for the defendant showed its building to have cost more than $3,100. This statement, considered in connection with the verdict, demonstrates, we think, the impropriety of the result here reached. The plaintiff should not have recovered $1,800 for the use and occupation, because no part of that sum arose from any use of the land to which the defendant could have devoted it, nor should the defendant have been allowed $300 for the value of the structures put by it upon the land, which structures it is entitled to remove at its jdeasure. It is a general rule of law that whatsoever chattels are attached to the realty with the manifest intent that they remain there becomes part and parcel of it, and cannot be removed without the consent of the owner of the freehold to whom they are considered a gift; but to this rule there are exceptions, and among others is the superstructure of a railway company. Such a company exercises the right of eminent domain — a governmental function — and takes no freehold, but a mere easement, and therefore cannot be said to have intended to attach its rails and ties and other appliances to the freehold. They are constructed also for public use and enjoyment, and it is their quality in this respect that distinguishes the acts of the company in their construction from those of a trespasser or others; and, if the terms for acquiring this easement are too onerous, it may remove its rails and ties, and pass in another direction. True, if it does not proceed in conformity with its power in the condemnation of the land for its right of way, and until it does so proceed, all its acts upon the land are trespasses, for which it is liable; and it may be put out of possession by ejectment. The defendant here had good reason to think it had acquired a right of way over this tract of land, and it therefore is not liable for punitory damages; but for all its acts upon the land, unless and until it acquires a right of way, it is responsible as a trespasser. This court, in Railroad Co. v. Dickson, 63 Miss., 380, 385 (63 Am. Rep., 809), approved the doctrine announced on this subject by the courts of Pennsylvania, Michigan, and Alabama. In Justice v. Railroad Co., 87 Pa., 28, it is said: “The common-law rule is undoubted that a trespasser who builds on another’s land, dedicates his structures to the owner. This case is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to the taking of the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him-? In the case of a common trespasser' the owner of the land may take and keep his structures nolens volens, but not so in this case; for, though the original entry was a trespass, it is well settled that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail jtself of the structures laid thereon. Another evident difference between a mere tort feasor and a railroad company is this: the former necessarily attaches his structures to the freehold, for he has no less estate in himself; but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement. A railroad company can take no freehold title, and when its proper use of the easement ceases, the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have, therefore, these salient features to characterize the case before us, to wit: The right to enter on the land under authority of law to build a railroad for public use; the acquisition thereby of a mere easement in the land; the entire absence of an intention to dedicate the chattels entering into* its construction to the use of the land; the necessity for their use in the execution of the public purposes; and, lastly, the power to retain and possess these chattels and the structures they compose by a valid proceeding at law, notwithstanding the original illegality of the entry. There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of the land because found upon it,” etc. In Railroad Co. v. Dunlap, 47 Mich., 456 (11 N. W., 271), the supreme court (p. 465, 47 Mich., and p. 273, 11 N. W.) said: “We are of opinion that no error was committed in excluding from the compensation allowed to Dunlap the value of the railroad track laid upon the land. The railroad company, whether rightfully or wrongfully, laid this track while in possession, and for purposes entirely distinct from any use of the land as an isolated parcel. It would be absurd to apply to land so used, and to a railroad track laid on it, the technical rules which apply in some other cases to structures inseparably attached to the freehold.” In Jones v. Railway Co., 70 Ala., 227, Brickell, C. J.,. ably demonstrates that the necessary structures for a railroad, placed upon land by one having the power of eminent domain, continue, under all circumstances, the personal chattels of such one. This rule is announced in Railroad Co. v. LeBlanc, 74 Miss., 650, 673 (21 So., 760), where many of the authorities supporting it are cited with approval. The plaintiff shows a right to recover the premises from the defendant, and he is entitled to recover also of defendant, for its use and occupation, a reasonable compensation for any use to which it could reasonably have been put by the plaintiff, and a further sum to cover all damages done upon the land by the defendant in constructing a roadbed for its railway track. The plaintiff is to be compensated for all losses, but he should have no increased compensation by reason of its use as a part of the system of railroad operated by defendant. Sullivan v. Lafayette County, 61 Miss., 271; Kille v. Ege, 82 Pa., 102; Bullock v. Wilson, 3 Port, 382; Sedg. Dam., sec. 908. The appellee insists that these principles do not apply to this case because the 1,000 feet of roadbed here sued for is only a part of a short spur line, and not an essential or necessary part of defendant’s main line; but the principle of law relating to the subject applies alike, we think, to both cases.

Reversed and remanded.