114 So. 53 | Ala. | 1927
Plaintiff (appellee) sued to recover damages, for that defendant (we quote from original count 5 of the complaint), "acting through its agents and servants, * * * wrongfully * * * cut the pipe line of plaintiff which carried water from the waterworks of the city of Cullman, Ala., to his factory," etc., and was allowed to recover in the trial court.
Plaintiff's contention was that the pipe line had been laid for its own use by the Cullman Coal Coke Company, and that he had purchased the line from that company. And, further, plaintiff contended that the traveled way along the course of which the pipe line was laid had by long user been converted into a public way, and that, if defendant's right of way — acquired under acts of Congress, to be presently stated — was subject to divestiture by adverse user, the evidence warranted a submission to the jury of the issue made by this contention of plaintiff and its denial by defendant. The evidence leaves no room for doubt that defendant's right of way on its western border was originally coterminous with the eastern boundary of plaintiff's property. Defendant's right of way extended 100 feet on either side of the center of defendant's track, until 1912 or thereabouts a single track. The road claimed by plaintiff to be a public road ran along and over the western margin of defendant's right of way as originally located. In recent years defendant's line has been double tracked, but that fact does not appear to have affected the question at issue between these parties. There was palpable conflict in the evidence, but that for plaintiff tended to show a general use by the public of the roadway in question. This user, according to plaintiff's contention and the evidence in support thereof, commenced 35 or 40 years before this action commenced, and lasted continuously during the time, though, evidently, the use of the road has not been so extensive in recent years as formerly. A number of buildings, residences, had their outlook on, and means of ingress and egress to and from, the road in close proximity to plaintiff's property.
At first we thought, and so wrote, that the evidence for plaintiff made the question of the establishment of the road as a public way by implied grant or dedication, thus excluding the proprietary right asserted by defendant, one for decision by the jury, citing Rosser v. Bunn,
But defendant's right of way was granted by the United States in 1871 (16 U.S. Stat. at Large, p. 580), and, in aid of its construction, alternate sections, odd numbered sections (as the reference to the act of 1856, 11 Stat. at Large, pp. 17 and 18, shows) were granted in fee, with reverter in case not sold to settlers. The locus in quo is in section 10. The question whether the defendant company may be held to have lost its proprietary right in the strip of land in which the pipe line claimed by plaintiff was laid is a federal question, and as to it we are bound by the decisions of the federal courts.
Speaking of a grant to the Northern Pacific Railroad Company in every essential particular like the grant under which defendant holds its right of way, the Supreme Court of the United States has said that the grant of the right of way was "in effect the grant * * * of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. This being the nature of the title to the land granted for the special purpose named, it is *658
evident that to give such efficacy to a statute of limitations of a state as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly, for, as said in Grand Trunk Railroad v. Richardson,
"By granting a right of way four hundred feet in width [in this case two hundred feet] Congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance."
However, the court, in Northern Pacific Railway v. Townsend, supra, by way of limiting the effect of its previously expressed opinion, said:
"Of course, nothing that has been said in anywise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use."
The conclusions of the Supreme Court of the United States in this regard have been consistently followed by that court in other cases. Rio Grande Western R. Co. v. Stringham,
The grant to defendant provided in the acts of 1856 and 1871, supra, so far as we are informed, have not been limited by subsequent act of Congress, nor has a forfeiture of any part of the right of way granted ever been declared.
Let it be noted that plaintiff has shown no ownership of the locus in quo, but claims that defendant has lost its proprietary rights by an adverse prescription in favor of the public, and so has no right to treat the pipe line as the property of a trespasser, which, by the trespasser's wrong, has become a part of the soil. The question then is whether defendant has lost its proprietary rights to the public by prescription. There is no evidence that the alleged way was established or has been recognized as a highway by the order of any competent public authority. It is commonly deemed not improper to say that a highway may exist by prescription, which in such case is based on the prescription growing out of an antecedent exercise of the power of the state by the proper authorities. Rosser v. Bunn, supra; Cross v. State,
In view of the conclusion aforestated, there is no need to discuss the subsidiary questions of pleading and evidence the defendant has sought to raise on this appeal.
We have carefully examined the case of Seaboard Air Line R. Co. v. Board of Trustees, etc. (Fla.)
On reconsideration the judgment in the trial court is reversed, and the cause remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.