120 Ala. 600 | Ala. | 1898
This is a statutory action of ejectment to recover possession of certain lands described in the complaint. A number of special pleas were filed by defendant in addition to the plea of not guilty to which demurrers were sustained. The record shows that the matters set up as a defense in these special pleas were offered in evidence by defendant under the plea of “not guilty,” and if they constitute a good defense could have been interposed.—Newson v. Guy, 109 Ala. 305.
The plaintiffs made out & prima facie case for recovery by proof of possessiqn of the lands under claim of ownership.when the defendant entered thereon, and are entitled to recover unless the defendant shows a superior title.—3 Brick. Dig. p. 325; 1 Brick. Dig. p. 637.
The defendant claimed the right to the possession of the lands in controversy under comdemnation proceedings, instituted by it against these plaintiffs in the court of probate of the county of Madison. Its right to possession is determinable upon the validity of that proceeding. If void, these plaintiffs can maintain this action. — Tenn. & Coosa R. R. Co. v. East Ala. R’y Co., 75 Ala. 516, and authorities cited; Hooper v. Columbus & Western R’y Co., 78 Ala. 213.
The land was a lot or parcel, triangular in shape, containing one and five one-hundredths acres in the northwest quarter of section nine, township six, range one east. No part of this quarter section was described or mentioned in the application for condemnation. The application offered in evidence was as follows : “Your orator, the Nashville, Chattanooga & St. Louis Railway, a corporation duly chartered, under the laws of the State of Tennessee, with its.principal office in the city of Nashville, State of Tennessee, respectfully represents, that under and by virtue of authority granted by the laws of the State of Alabama and State of Tennessee, it proposes to extend its line of road in the county of Madison,
In the proceedings in question, the court of probate exercised a special statutory jurisdiction. The statute confers the power and jurisdiction,: and prescribes the mode of calling it into operation. “Any corporation organized under the laws of this State, or any person,
The evidence offered by defendant to show the receipt by the guardian of plaintiffs of the amount of damages as assessed by the commissioners in the condemnation proceedings, and that he accounted for the amount paid him in the settlement of his guardianship in the probate court, as well as the deed executed by him as such guardian, was properly excluded. The evident purpose in offering this evidence was to work an estoppel against the plaintiffs. Pretermitting the fact that- they were minors at the time, had they been adults this could not have operated as a transfer of the legal title to the lands, In Hooper v. Columbus & Western Railway Co., 78 Ala. 216, Justice Somerville said: “There are cases which support the view that an equitable title, can be set-up by estoppel at law in cases of this character, where the the plaintiff, having knowledge of the fact that a company is proceeding to construct a line of railroad over his land, allows them to expend large sums of money in such an improvement without objection. We admit there is much force in the reasoning upon which these cases are based and a dictum occurs in the case of New Orleans & Selma R. R. Co. v. Jones, 68 Ala. 48, where-some countenance was given by us, arguendo, to this doctrine. So
The suggestion of adverse possession by the defendant for three years next before the commencement of the suit (Code of 1886, § 2702) was unsupported by evidence. The suit was brought within three years after the institution of condemnation proceedings. The evidence that the line of railroad was surveyed and located over the land more than three years before the commencement of the suit, without more, was without tendency to show that an entry was then made, under claim adverse to the rights of the landowner. The condemnation proceeding was a recognition of the title of the true owner. There was nothing to submit to the jury under the suggestion of adverse possession. Lines of railroad and of other public roads are not infrequently contemplated, surveyed and located, and then changed or abandoned, never becoming permanent.
We find no error in the record, and the judgment must be affirmed.
Affirmed.
Note. — The writer of the foregoing opinion is indebted to the late Chief Justice in its preparation. He had prepared an opinion, which in the main was adopted by the writer, but which had never been passed upon by the court.