50 So. 380 | Ala. | 1909
This is an appeal from a decree overruling demurrers to thé bill and refusing to dissolve an injunction. The appellants sued the appellee in ejectment to recover a parcel-of land constituting the right of way of appellee. The appellee filed its bill to enjoin said action of ejectment, alleging that the ejectment suit is by Madison Jones and Napoleon B. Jones, as trustees under the last will and testament of William Jones, deceased; that the predecessor of complainant, “the Selma, Marion & Memphis Baiiroad Company,” was incorporated under a special act of the Legislature (Acts 1868, p. 566) ; that under and by its charter it was authorized to condemn lands, etc.; that condemnation proceedings were allowed to be had before a justice of the peace; that the lands in question were held by said M. and N. B. Jones, with Wm. A. Jones (since deceased), as trustees
A writ of injunction was issued, in accordance with the prayer of the bill, demurrers, were interposed to the bill, and an answer was filed, -which in terms denies the allegations in regard to the charter of the original railroad company and the condemnation proceedings, but goes on to allege that said company was chartered, that its charter did confer the right to condemn before a jus
The will, which is made an exhibit to the answer, conveys the lands to said trustees and their survivors in fee simple, providing that if either dies his portion goes to his children, etc. The codicil provides that the property
This court, at an early day, in speaking of the case where a railroad company had entered upon lands as a trespasser, said: “Though the appellee was a trespasser, by reason of the neglect to pursue the proper remedy for acquiring the lands, acquiring them without the consent of the owner, there is, in the right continuing in him to pursue the remedy, rendering the possession rightful, and by which title may be acquired, a plain distinction between the appellee and a common trespasser. No remedy is given the trespasser by which he may acquire the use and enjoyment of, or title to, the lands. There is also another distinguishing fact: The structures of the appellee were dedicated, not to the use and enjoyment of. the freehold, but to public uses,” etc. — Jones v. N. O. & S. R. R., 70 Ala. 232. In that case it was held that, though the railroad company had entered as a trespasser, it could institute proceedings to condemn the land, which should be assessed as of its value when taken.
This court has also held that, where the owner in fee of lands subject to a vendor’s lien conveyed a right of way thereon, upon a bill filed to enforce the vendor’s lien, the complainant was not entitled to have the roadbed and right of way sold to satisfy his claim, but could only compel the railroad company to make just compensation for the lands conveyed to and appropriated by it, and
In this case the railroad company did not enter as a trespasser, but. entered under proceedings which were thought to he valid, to which proceedings the trustees to whom the legal title to the lands was convened were parties, and said trustees now- bring the ejectment suit. It is unnecessary to decide whether the permissive' use of the land as a residence by Wm. Jones and his wife created a life estate in them, or whether said trustees, holding the legal title, could not have instituted some proceedings to force a condemnation of the lands, or whether the proceedings had were valid or void. Under the principals adverted to, it would he inequitable to permit said trustees to recover in ejectment, and the serious damage which would result from a dissolution of the injunction, as compared with the mere delay to the •other party, indicates that the injunction should not be ■dissolved. — Mobile & W. Ry. Co. v. Fowl River Co., 152 Ala. 320, 44 South 471.
Affirmed.