108 Tenn. 17 | Tenn. | 1901
This is ail action to recover damages for the alleged taking and appropriation for railroad purposes of a right of way through the premises of the defendant in error.
The Eailway Company relies on a deed from the owners of the premises, granting in 1890 a right of way to the B. E. & W. N. C. Railroad Company. To this, the plaintiff below replied, first — ’that by its terms, under conceded facts, the deed or grant became inoperative at the expiration of twelve months from its date; and, second, an adverse possession for seven years.
The facts disclosed are, that the B. E. & W. N. C. Railroad Company some time after receiving its deed of a right of way over the property in question, and before the construction of its projected road, fell into financial straits, and its creditors instituted proceedings in a court of competent jurisdiction to wind it up as an insolvent corporation. Pending these proceedings, the grantors enclosed the property through which the right of way was granted, and had been in possession of and cultivating the same for seven years before the appropriation complained of in the present action. This appropriation was made by the present plaintiff in error, which holds under a title, acquired at a foreclosure sale, made under a decrée pronounced in the insolvent cause, which subjected to sale all the property (including the
The contention that the right of way granted in 1890 had expired by limitation at the time the present claimant — the plaintiff in error — entered into possession, rests on a clause of the deed, which, following its granting parts, is as follows: “This right of way to be exclusive for one year.” The trial Judge construed this as a limitation upon the grant, and, in effect, told the jury that if they should find the grantee did not construct its road or perform labor in so doing, within one year from the date of the grant,, then the right under it terminated and nothing passed by virtue of it to its successor, the plaintiff in error. He fell into error in this construction. There had clearly been granted fully and unreservedly a right of way. This grant, however, was in general terms. The line to be followed was not designated nor described in the deed. Under it the eonveyee, subject to certain conditions, not pertinent to this controversy, had a right to locate its road wherever it desired across the grantor’s property.
Now, to strengthen the position of the grantee, and for a limited time, to free it from competition, possibly on the part of other projected railroads, the grantor supplements his deed with the above quoted clause. So that for one year, the grantee had the exclusive right to a roadbed
The trial Judge was also in error in giving the defendants in error the benefit of the seven years’ statute. The grantors, the defendants in error, were the owners of the fee in the premises, and until thé railway company found it essential to assert its right of way, they could make use of them, so that their enclosure and cultivation of the same were, in no proper sense, adverse to the easement claimed by the railroad company. The rule which was held to control in Railroad v. Telford, 89 Tenn., 294, and Railroad v. French, 100 Tenn., 209, equally applies in the present case.
The judgment of the Circuit Court is reversed, and the cause is remanded.