141 Ala. 335 | Ala. | 1904
In the statement of facts agreed on it is recited that plaintiff “and those; through whom she claims, have been and were at the time of the said alleged trespass and for twenty years prior thereto, exercising acts of ownership and control by cultivation and otherwise, under claim of right and ownership, of the premises on which the said alleged trespass is charged to have been committed, and up to the foot of the embankment. of the railroad track.” By a witness it was shown that plaintiff’s husband to whose possession she succeeded occupied the land from about 1850 until his death-in 1884, when her possession commenced under an allotment of homestead. Prima facie these facts show that at the time of the act complained of, plain
The act complained of was the digging of a ditch by defendant a few feet from the embankment of, and within thirty-six feet of the center of a railroad leased to and operated by defendant. The railroad was completed about the year 1859 or 1860, and was built under a charter granted by an act of the Legisláture passed in 1853, (Laws 1853, p. 298) to the Tennessee & Alabama Central Railroad Company, which act provided among other things for the acquirement by that company by contract or by condemnation proceedings, of “land for the track of said road, not to exceed one hundred and fifty feet wide.” Apparently by virtue of its lease and sundry transactions preceding it, defendant was at the time of the alleged trespass entitled to use the railroad and all rights of way which were thereto appurtenant, and those rights it sets up as a defense to this action. The facts show the work of digging was necessary to the proper maintenance of the. road; that before its commencement neither defendant nor any of its predecessors in right, had ever exercised or sought to exercise any act of ownership or control over the land at that point - adjacent to and not covered by the road embankment. From the agreed statement we quote, that defendant “does not know whether the original railroad company, the Tennessee & Alabama Central Railroad Company or any of its successors in title ever secured from the owners of the lands; through which the road was originally built, at the time it was built or thereafter, any conveyance of the land for its right-of-way through said premises in dispute, nor whether there was any condemnation proceedings as authorized by the charter, of a right of way through said premises in dispute, but on the contrary the company built its railroad through said premises either by the license or let of the original owners, whoever they may have been, and has from that time until now, as
The “license or let” upon which the main defense is thus rested does not appear to have amounted to more than permission or leave given by the land owners “for the building of the road through the premises.” A license not coupled with a grant or contract cannot operate to convey land or to' create an easement. — Hicks Bros. v. Swift Creek Mill Co. 133 Ala. 411; Wash, on Easements, 6; Bast Jersey Iron Co. v. Wright, 32 N. J. Eq. 249; 18 Am. & Eng. Ency. Law, 1128.
Cases there have been in which presumptions were indulged favoring the existence of a right-of-way coextensive with the limits allowed therefor by statute; but such presumptions if not made against the party entering in the assertion of rights under the statute, or in the construction of some conveyance or other contract, have usually been based upon a statute differing in terms and effect from the chartering act relied on by defendant. That act created no right of way, its provisions in respect thereto being merely for the acquisition of one within maximum limits of width without otherwise fixing the area wherein the same should presumptively or otherwise exist. Such provisions though contained in a public statute, and a fortiori when in a private act, do not impart to a mere license to build a railroad the effect of protecting the builder in the occupation or use of lands not taken in the execution of the license, though they be within the legal limits of width. Hendrix v. Southern Ry. Co. 130 Ala. 205; Nashville, etc. R. Co. v. Hammond, 104 Ala. 191. gee also Stein v. Burden, 24 Ala. 130. This road having been completed and maintained on other lands for forty years before defendant’s entry thereon, authority for the entry is not to be'presumed or inferred from the license to build.
There are authorities tending to support the proposition that advice of counsel based on a. disclosure of the facts may in a) case such as, the one under consideration, be considered in disproof of malice and in mitigation of damages, as to which see Sutherland on Damages
In respect of the amount of the verdict ¿lo question is raised except by the refusal of a charge professing to restrict the recovery to nominal damages. Por a malicious trespass injurious to real property exemplary damages may be awarded, ‘and tire act of intentionally injuring such property in known violation of the possessor’s rights therein is evidence of malice. — Hicks Bros. v. Swift Creek Mill Co., supra; Sutherland on. Damages (3 ed.), § 1031; 19 Am. & Eng. Ency. Law, •623. From the evidence the jury might well have found the ditching was done not inadvertently but in intentional disregard of a written protest giving notice of plaintiff’s rightful occupation of and claim to the land and without any offer or purpose on defendant’s part to make compensation. From these facts there might have been drawn an inference of malice to which the further fact that the work was necessary for the proper maintenance! of the road was not opposed with such conclusiveness as would have warranted the withdrawal from the jury of the questions of malice and exemplary damages.
The complaint avers and the evidence: showed such a violation of plaintiff’s property and property rights as would have entitled her to recover at least nominal damages irrespective of whether damages greater than nominal were actually sustained, and in such case the existence of such greater actual damages, is not, under the law as declared in this state, an essential predicate to the imposition of exemplary damages.” — See Ala, Great So. R. Co. v. Sellers, 93 Ala. 9, and authorities there cited.
Affirmed.
