62 Miss. 162 | Miss. | 1884
delivered the opinion of the court.
The railroad company acquired the right of way by adverse possession for ten years, but its right was limited to its actual occupation, since there was no paper title to extend its possession by construction. Neither in the petition nor other part of the proceedings for condemnation of the right of way is there any indication of the bounds of the proposed right of way or the quantity of land to be appropriated. To the extent of its actual occupation the defendant was protected against the claim of the plaintiffs for damages, but for any damage done by the defendant to the land of the plaintiffs outside of the domain covered by the adverse possession spoken of, they were entitled to recover. We suppose that the ditch on each side of the road-bed constitutes the limit of the actual occupancy to which the defendant can lay claim with success. The evidence is that within six years before the institution of this action the defendant widened the road-bed and deepened and widened correspondingly the ditches on the sides of the road-bed. Whether the widening was on the outside as well as the inside bank of the ditch does not appear. The import of the testimony is that the outer bank of each was cut, and if so, to this extent there was an infringement of the rights of the plaintiffs, for which they are entitled to recover compensation to the extent of the injury sustained. It may be insignificant in amount, but that is not the question.
In the trial below there was no distinction made between the parts of the hundred feet wide claimed by the defendant. The instructions to the jury related to the entire hundred feet wide. Our view, as shown, -is that there is a manifest distinction between that part of the hundred feet actually occupied and that outside of the actual occupancy, which is apparent from the record, and which should have been observed in the trial, and as the question is embraced ih the errors assigned and arises on the record, though not specifically made in the court below or here, we feel bound to> decide it.
Judgment reversed and cause remanded for a new trial.
