Southern Railway Co. v. Cowan

129 Ala. 577 | Ala. | 1900

HARALSON, J.

The decision in this cause on a former appeal. (118 Ala. 554). is a virtual determination of most o'f the questions now presented.

1. It is- set up. in the. answer, that the owner of .the land, W. N. Cowan, in bis lifetime, brought ejectment in the city court of Gadsden for the. strip of land used as a right of way by the defendant company, and on the trial of said cause, the question of said strip' being a part of the homestead of said Cowan, • at the time of his said deed to the Rome .& Decatur Railroad Co. was involved, was adjudicated adversely to said Cowan, and such adjudication is conclusive-on the complainants who succeeded to' the rights of the said Cowan. Such an adjudication woul'd not have barred the right of the owner to bring his second action of ejectment for the same. land. — 'Code, § 1554. The complainants here are seeking to enforce an equitable right. An action of ejectment is not Conclusive of the equitable rights and relations of the parties'growing out.of the subject matter of the ejectment suit. That suit could be maintained or defended, only, on a legal right to the possession, without regard to- the equities.—Harper v. Campbell, 102 Ala. 343. The plaintiff iLn said ejectment suit as we have more than once decided, might have been estopped to maintain it, and -that fact might work no estoppel against 'him from claiming just, compensation for the land taken by the company.—Southern R. Co. v. Hood, 126 Ala. 312, and authorities there cited; Cowan v. Southern R. Co., 118 Ala. 561; Williamson v. Mayer, 117 Ala. 253; Smart v. Kennedy, 123 Ala. 627.

2. It is not true as contended in argument, that it appears by the bill, that W. N. Cowan-.had received in his lifetime compensation for the right of' way taken. It is averred in the ’bill, that there was no consideration -for said deed which purports to convey a right of way,' except that expressed in the deed itself exhibited to the bill.' The deed, which is not disputed, shows no consideration in money paid, nor is there any evidence, -that -the "instrument was not-entirely'voluntary. • • ' ■ ■ • ■ ■

.3. To the bill as revived, and amended, the heirs of Cowan were made parties 'Complainant, as was Ms widow. It was demurred to, because of misjoinder of the widow and heirs as complainants, which demurrer was properly sustained, as was ■ held on former appeal. We then said: “The recovery whatever it may be, will be assets of the estate of the husband, to be disposed of in due course of administration. It 'was proper, therefore, to revive the suit, on the suggestion of the death of the husband, in the name of his administrators, but there was a misjoinder as was held by the court below, in the bill of revivor, in making the widow of the deceased and his heirs’ parties complainant.”' Accordingly the bill was properly amended, leaving the administrators the'only parties complaánaát. '«’Now it is objected, on demurrer, that the heirs 'of W.-N. 'Cowan are not made parties to the suit. '■ _ ■

As it appears, the heirs, in the bill of revivor, ■ Were made parties complainant, and were stricken 'because- of an objection by defendant ■ on' demurrer ’ of their mis-joinder. The defendant, thereafter, again demurred because, — to state the-objection as made, — The heirs “are not made -parties to the suit.” • Without deciding whether they are proper or hébéssary parties defendant or not, it is sufficient to say- that' thh demurrer is not apt to raise that question. - "It-refers to them as not'being parties complainant, as well as to their not being-defendants. If the demurrer refers to them as complainants, that question was decided at the instance and in favor of defendant, on the former appeal; if to them a® defendants, the demurrer does not raise the question, and there.was no error in overruling.it.. . ;

4. It is objected again, that the register erred in Ms finding that the .lands taken for the right of way, were. 50 feet on each side of the center of the track through 110 acres of the land, amounting to six and three-fourths of an acre ,whereas, the proof showed, that only about two acres were in possession of the company — the land being in cultivation up to the road-bed, .. But, there is no merit in this objection. The bill alleged that defendant had taken and was .in possession of the 100 feet, and the answer admits that the road was built in' 1886, by the Borne & Decatur Railroad Company, “and-.[that] railroad, and its successors have been in possession of said strip of land ever 'since, operating its railroad through and upon it, from Rome, Georgia, to Attalla, Alabama, and that defendant is now in possession of and occupying the same, and that complainant has been deprived of the use and possession of said strip of land ever since it was taken possession of by the Rome & Decatur Railroad Company.” The fact that complainant cultivated the land up to or near the road-bed, if true, unless under a claim of adverse right, which is not shown, was presumptively permissive, and not inconsistent with the defendant’s ownership and possession of its easement in the entire 100 feet.

5. On the former appeal we held, consonant with our rulings on the subject previously and since, and the rule generally obtaining, that just compensation for the land, at the time of the taking, paid before, or concurrently with its appropriation, with interest thereon, is the right of the owner seeking compensation.—Jones v. N. O. & S. R. R. Co., 70 Ala. 227; First Nat. Bank of Gadsden v. Thompson, 116 Ala. 166; Mobile & Ohio Railroad Co. v. Postal Tel. Co., 120 Ala. 21; M. & O. R. R. Co. v. Hester, 122 Ala. 252.

We have passed on all the questions needing consideration, and no errors appear.

Affirmed.