| Ala. | Nov 23, 1911
The action is the statutory one in the nature of ejectment.
The complaint as last amended consisted of two counts, “1 and 2.” Demurrers were interposed and overruled to both of these counts. The chief ground of demurrer insisted upon is that each count was too indefinite and uncertain as to the description of the land sued for.
We do not think either count was subject to demurrer for that reason. The lands described could be located or identified by the description in either count — • which is all that is required. — T. & C. R. R. Co. v. East Ala. R. Co., 75 Ala. 522, 51 Am. Rep. 574; Jinkins v. Noel, 3 Stew. 60" court="Ala." date_filed="1830-07-15" href="https://app.midpage.ai/document/jinkins-v-noel-6531536?utm_source=webapp" opinion_id="6531536">3 Stew. 60; Griffin v. Hall, 115 Ala. 482" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/griffin-v-hall-6517221?utm_source=webapp" opinion_id="6517221">115 Ala. 482, 22 South. 162; O’Neal v. Seixas, 85 Ala. 80" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/oneal-v-seixas-6513190?utm_source=webapp" opinion_id="6513190">85 Ala. 80, 4 South. 745.
Count 2, however, is wholly bad, for the reason that it contains nothing but the description of the lands, and the names of the parties.
It may be that plaintiff’s deed, which was its only claim of title, in connection with the Guice contract to which it made reference, and the deed introduced by defendant, were sufficient to show that the land sued for was that conveyed by plaintiff’s deed; but it is very certain that it was not so conclusively and indisputably shown that the court could direct the verdict. Plaintiff’s deed would have been void for uncertainty of description, of course, but for the reference to the Guice contract of sale and map for the description of the land intended to be conveyed. Counsel for appellee are in
The reporter will insert a copy of the map referred to in his report of this case. (See page 158 for map.)
It will be observed that the description in the contract fails to show whether the land sold is on the east or Avest bank of the river, if it runs east or west. Nor does the map show certainly the direction of the river or of the railroad forming the boundaries of the land. There are two dim pencil tracings on the original map sent up for our inspection, which were probably intended to show the direction of the compass and would therefore, in some measure, explain the map; but in the copy of the map shoAvn in the transcript these pencil tracings do not
The land attempted to be described in the contract, in the complaint, and in the judgment, is evidently a quadrangle; but the map shoivs no such land traced or platted. It shows one piece of land indicated to contain Is acres; but it is a triangle, two sides of which are straight lines, and the third, a curved line; but the dimensions of this triangle are not given otherwise than might be indicated by the area. Neither side of it touches the bank of the river.
The result is that we are wholly unable, with the entire record, containing all the evidence, pleadings, and original map, to locate the land conveyed to plaintiff or recovered in this action. It is very probable that the sheriff, with the aid of a surveyor, could locate the land sued for, and that recovered; but he could not so locate that described in the deed or in the Guice contract, without the aid of some evidence extrinsic to this record. The map, without the aid of some extraneous evidence, to show the distances and the directions of the lines marked thereon, tends rather to confuse the other descriptions than to explain them.
The Guice contract, and the map attached, show on their face that they were never intended as certain and specific descriptions of the land, but the contract recites that the vendors will convey the 15 acres mentioned, whenever it is surveyed by the. vendee and a deed is presented to them — which is not shown to have been done by the vendee or any other person. This' probably accounts for the uncertainty and confusion in the description and maps.
Counsel for appellee are in error when, in referring to the Guice contract and the deed from Moulthrop to
They are in error as to both the facts and the law: Neither one of these papers specifies or states the fact that the beginning point was at a point on the west bank of the Chattahoochee river, and 50 feet from the center of the track. .Neither the center of the track, nor the west bank of the river, is mentioned in either. It may be that the court and the jury, and this court, could infer that it was on the west bank rather than on the east, because the east would put it in Georgia, and the instruments recite that the land is in Alabama; but they nowhere recite that the' starting point is 50 feet from the center of the track.
This court does not judicially know that the right of way in question was 100 feet wide, nor that the railroad track-is the center thereof, whatever may be its width. It is very true that most rights of way of railroads in this state are 100 feet wide, and that the track is usually in the center; but there is no law, written or unwritten, fixing these matters, nor is there any such universal rule, in regard thereto, as would afford this court, in the absence of any testimony on the subject, grounds for the judicial assumption o.f such facts in the case at bar. We do not think that the cases cited by appellee so decide. The case of Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/haley-v-kansas-city-memphis--birmingham-railroad-6517013?utm_source=webapp" opinion_id="6517013">113 Ala. 640, 41 South. 357, decided'only that, where a complaint alleges that the plaintiff was walking along a. footpath about five feet from the track of a railroad, the court will construe the complaint
Moreover, the statutes in question limit the right of Avay to Avha.t may he necessary, not to exceed 100 feet in Avidth. — Ala. Mid. Ry. Co. v. Brown, 98 Ala. 648, 13 South. 70.
That no such presumption can be indulged, as is necessary to support the ruling in this case, Avill clearly appear from an examination of the two folloAving cases:
In the case of Tennessee & Coosa Railroad Co. v. East Alabama Railway Co., 75 Ala. 523, 51 Am. Rep. 175, it is said: “The description of AAdiat is called the right of AAay — that area of servitude which lies outside of the graded track — -is not sufficient. Its dimensions should liaA'e been given as a guide to the jury, and to the officer executing the Avrit of possession.”
In the case of Louisville & Nashville Railroad Co. v. Smith, 141 Ala. 341, 37 South. 492, it is said: “Cases there ha.ve been in which presumptions were indulged favoring the existence of a right of Avay co-extensive Avith the limits allo'wed 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 defend
For the errors pointed out, the judgment must be reversed, and the cause-remanded.
Reversed and remanded.