119 Ala. 358 | Ala. | 1898
Lead Opinion
The appellee, Choate, sued in ejectment and recovered a parcel of land, included in and covered by the land described in the complaint. The other portion of the land, not involved in this, appeal, was disclaimed by the defendant. The' facts pertinent to the questions of law, presented by the record for ad-judication, may be substantially stated as follows: The-railroad of defendant runs.across the lands sued for, and it is the right of way that is involved. The lands were granted by Congress to the State of Alabama for the benefit of the Coosa & Chattooga Railroad.- — See U. S. Statutes, June 3d, 1856, April 10th, 1869, and Acts of the Legislature of Alabama, Feb. 8th, 1858. Some time prior to 1881 the plaintiff purchased from some jerson who was occupying the land, but the right or interest of the vendor, if he had any, does not appear, and moved upon the land with his family, and has ever since resided upon the land as a homestead. The Coosa & Chattooga Railroad was never constructed, and so far as appears, no work was undertaken to. construct it. In 1887, the Rome & Decatur Railroad, by regular condemnation proceedings in -the court of probate of Cherokee
Many questions are raised in argument by brief of appellee as to the deficiency of the petition for the condemnation of the right of way, etc. These questions are all excluded by the recitals in the bill of exceptions. There are only two questions deserving consideration. One is, whether the act of Congress, forfeiting the lands to Congress and resuming title divested the defendant of its right of way, and second, if so, whether under the facts, the title acquired by the patent enured to the defendants. The proviso, in the forfeiture act, is broad enough to include within the exception, the present right of way, and no good reason occurs to us, why a restrictive construction should be given to it. It was certainly within the contemplation of Congress, that other railroad corporations, or other corporations, invested with the privilege of eminent domain, might acquire easements over the lands which had been do
We have been referred to no judicial construction of the statute, and in construing it in the light of all the facts, Ave are of opinion that the statute of the United States, forfeiting these lands, did not forfeit the right of way OAvned by the defendant. Under this view of the law, the plaintiff can never recover, and the defendant should have been given the benefit of an affirmative charge. It is unnecessary to discuss any other question.
Reversed and remanded.
Concurrence Opinion
concurs in the opinion of the court and further holds, that the plaintiff is estopped by the judgment rendered in the condemnation proceeding.