88 So. 274 | Miss. | 1921
delivered the opinion of the court.
The appellant railroad company by hill in the chancery court seeks to confirm its title and remove therefrom as a cloud thereon the alleged pretended claim of title of the oppeliee, C. R. Strain, to a certain lot or piece of ground situated in the town of Tupelo. The answer of the defendant, Strain, denies the title of the complainant railroad company and claims title to this land because of the adverse, open, notorious, and continued possession of the land under claim of title by himself and his predecessors in title for a period of about thirty years. The case was tried on pleadings and an agreed statement of facts, and the bill of the complainant was dismissed, from which decree this appeal is prosecuted.
The uncontradicted facts shown by the record material to this decision are as follows: On July 7, 1868, Mayfield Reese sold to Samuel M. Robertson a certain lot in the city of Tupelo, designated as the Johnson Hotel property.
The record further shows that before the deed of conveyance from Reese to Robertson, under some sort of an agreement of purchase Robertson had erected upon this land a hotel and had made some arrangement with the officials of the railroad company for trains to stop at the hotel for meals, and this hotel ivas thus-used for two or three years. A part of the agreement is as follows:
“No garden was inclosed and cultivated in connection with said hotel until 1868. In 1868 said Robertson, presumably with the consent of the Mobile & Ohio Railroad Company officials, many of whom took their meals at his hotel from time to time, inclosed the lot here in controversy just south of said hotel lot for a garden, since which time it has been continuously inclosed and used as a garden in connection with said hotel property. . . . The exact time in 1868 that said inclosures were made being unknown, but such inclosure was early enough to make a garden. . . . That the inclosure of the garden was by picket fence, and same remained in place' for a period of forty-seven years, continuously, until the present structure was put there in 1915.” ,
“Since 1891 the deeds to said Johnson Hotel property in addition to describing the same as set out in the deed from Reese to Robertson, describe in varying language ‘grounds, garden, stable lot, and attached lands belonging to said hotel! ”
Again : “The grantor of the Johnson Hotel property, who first made a deed and added to the description the language ‘grounds, garden, stable lot, and attached lands belonging to said hotel/ had owned the Johnson Hotel property for sixteen years prior to 1891; and in making said conveyance he pointed out as a part of the Johnson Hotel property this particular garden adjoining said hotel property on the south which is the property involved in this cause. Said grantor pointed out said garden as a part of the land he intended to convey by his deed and which he claimed to own. This character of conveyance of said Johnson Hotel property has continued down to and including the conveyance to the defendant, Strain; and since 1891, and for about thirty years, Strain, the defendant, and those through whom he claims title to said Johnson Hotel property, have claimed this garden (which is the lot involved in this cause) as a part of said Johnson Hotel property, and have been in the open, notorious, adverse possession thereof claiming title thereto.”
During the whole of the time from 1868,, the grounds in controversy have been fenced and used as a garden by the owners of the hotel property. During all of this time various and sundry officials of this railroad company, includ-' ing the president, have frequently visited Tupelo and had an opportunity of observing the continued open and notorious possession of this lot by the owners of the Johnson Hotel property. Since 1891 neither Strain nor his grantors have known that the railroad company laid claim to this lot. It is ñírther agreed that during the time that Strain and those through whom he claims title had been
It is the contention of the appellant that the holding and possession of this lot by Strain and those through whom he claims was not adverse and hostile until the time the property was needed by the appellant company upon which to build this side track; that up to this time this possession was permissive. Appellant relies on this clause of the contract, namely:
“In 1868 said Robertson, presumably with the consent of the Mobile & Ohio Railroad Company officials, many of whom took their meals at his hotel from time to time, inclosed the lot here in controversy just south of said hotel lot for a garden, since which time it has been continuously inclosed and used as a garden in connection with said hotel property.”
“This character of conveyance . ... has continued down to and including the conveyance to the defendant Strain, and since 1891, and for about thirty years, Strain, the defendant, and those through whom he claims title, . . . have claimed this garden as a part of the said Johnson Hotel property, and have been in the open, notorious, adverse possession thereof, claiming title thereto” — and further that since 1891 Strain and his grantors have not known that the appellant company claimed title to this lot. From this agreement it is apparent that the appellee and his predecessors in title certainly from 1891 have exercised all of the rights of ownership possible to this lot. They have been in the exclusive, open, notorious possession thereof, claiming title. Their deeds to this lot were also on record. The only thing that could possibly have been done by them which was not done was actually notifying the appellant company through the proper officials of their claim to this property. The original possession of Robertson to this lot'presumably with the permission of the railroad officials as to its duration is not shown. This permission, however, under this statement was purely a personal one to Robertson, and it cannot be presumed from this that his remote grantees were only exercising this permissive possession. Especially is this true in view of the fact that the party who sold the land in 1891, and who had been in possession of it since 1875, by deed included this land, and explained to his vendee that he owned it, and from 1891 to the present time these vendees both through their recorded deeds and their acts in pais have exercised the very highest degrees of ownership over this land that are susceptible of being so exercised.
In the case of Graham v. Railroad Co., 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344, it is stated that:
“The distinction between a vendor and a stranger in such a case relates to the character of evidence necessary to show that the possession was adverse. If the parties are strangers in title, possession and the exercise of acts*712 of ownership are, in themselves, in the absence of explanatory evidence, proof that the holding is adverse; whereas if the vendor, after having executed deed, continues to remain in possession, the natural and reasonable inference, in the absence of evidence to the contrary, would be that he holds in recognition of the rights of the person to whom he has conveyed.”
This doctrine is approved in the case of Railroad Co. v. Ruttan, 90 Ark. 178, 118 S. W. 705. See, also, note to case of Railroad Co. v. Dawes, Ann. Cas. 1917A, 1274.
In this state, contrary to the holdings in some of the states to which reference has above been made, it has been held that the owner of a servient estate can cultivate the right of way only with the consent of the railroad company, and that the occupancy of the right by the railroad is practically exclusive. Wilmot v. Railroad, 76 Miss. 374, 24 So. 701. It is further held in this case that the owner of a servient estate may acquire title to parts of the right of way by adverse possession. In that case it is held that:
“Such occupancy by the owner of the fee must be strictly exclusive, and under distinct color of right, in order to bar the entry of the railroad company. It should distinctly appear that the owner of the fee is not attempting to exercise his use of the land in harmony with the right of the railroad company, but his occupancy must be distinctly hostile to that of the company.”
It is also further said in speaking’ of the owner of the fee: “But if he should fence a paid of the right of way against the company itself, and claim, to- the knowledge of the company, a right to use it as his own, discharged of servitude of the company, or under circumstances that necessarily gave the company notice of such claim, and should continue such possession for 10 years, the company would-be debarred of all right.” Wilmot Case, supra.
To the same effect is Paxton v. Railroad Co., 76 Miss. 536, 24 So. 536.
Under the statement of facts in this case, the permissive possession of Bobertson of this lot being purely personal,
It is next contended by the appellant that title to this lot cannot be acquired by adverse possession far two reasons : First, because section 184 of the state Constitution provides that “all railroads which carry persons or property for hire shall be public highways, and all railroad companies so engaged shall be common carriers;” second, because this railroad company is what is termed a “federal land grant railroad,” and under the act of Congress above referred to “the said railroad and branches shall be and remain a public highway, for the use of the government of the United States, free from toll or charge upon the transportation of property or troops of the United States;” that under this act it is also made a public highway charged with the duty of transporting free of charge property and troops of the United States.
First. Section 184 makes railroads public highways. There are, however, many differences between a railroad right of way and streets and public roads. The rights of the public to the use of the streets and public roads cannot be lost by adverse possession. Whitherspoon v. Meridian, 69 Miss. 288, 13 So. 843; Briel v. City of Natchez, 48 Miss. 423; Vicksburg v. Marshall, 59 Miss. 563. When a street or public road is used for purposes other than those to which the land is dedicated, the right of the people themselves, the right of the public generally, is affected by such use, and the people in such cases cannot be thus deprived of their rights. We do not think this rule is applicable, however, to a part of a railroad right of way which is not in actual use. The right of way, in a sense, is a public highway, and the land acquired therefor, either by purchase or condemnation proceedings, though devoted to a public use, is the private property of the railroad corpora
“Sovereign rights are not necessarily involved in the use of a portion of a railroad right of way for private purposes. While there might be, and sometimes is, such an obstruction of' a railroad right of way as to constitute a public nuisance, the one in question is not such an obstruction or use. The wrong here complained of is private and not public.”
Just as in the case at bar, for the proper operation of the railroad it is not necessary that it have possession of this lot, which is fifty feet from its main line track. The very fact that it has not used this lot since 1868 is conclusive of the fact that it is not necessary for the operation of the railroad.
To those lands of a railroad company not actually necessary for the operation of the railroad title by adverse possession may be acquired. The authorities in other states upon this question are divided, as may seem by reference to the following reports: Note in 87 Am. St. Rep. 766; 2 Ann. Cas. note, page 718; Dulin v. Railroad Co., 73 W. Va. 166, 80 S. E. 145, L. R. A. 1916B, 653, Ann. Cas. 1916D, 1183, and note, note to the same case in L. R. A. 1916B, 657.
The questions decided in the Paxton and Wilmot Gases, supra, arose after the adoption of the Constitution of 1890, but it does not appear from the briefs of counsel or from the opinion of the court that section 184 of the Constitution was expressly called to the attention of the court.
The decree of the lower court is affirmed.
Affirmed.