143 Va. 439 | Va. | 1925
delivered the opinion of the court.
This was an action of detinue to recover certain steel tramrails, in which there was a judgment for the defendants.
When this ease was formerly before this court, it was decided that a joint action of detinue could be-maintained by plaintiffs in error against the defendants in error. Talley v. Drumheller, 135 Va. 186, 115 S. E. 517. That decision became the law of the case, and the question is not now open to debate on a second-writ of error. Norfolk & W. R. Co. v. Duke, 107 Va. 764, 60 S. E. 96; Steinman v. Clinchfield Coal Corp., 121 Va. 611, 92 S. E. 684. But if the same question should again come before the court on a like state of facts, a majority of the court desire it to be considered open for further consideration.
By deeds bearing date September 4, 1867, and' October 23, 1867, the defendants and those under whom they claim acquired title to a tract of land containing 800 acres, called “Wheatland,” and a right of way therefrom to the James River and Kanawha canal over land subsequently acquired in different tracts by the plaintiffs, respectively, in severalty, except the plaintiff, W. E. Harvey, who acquired title from a different source. All of the plaintiffs except Harvey claim under a common source with the defendants..
John T. Jones, whose executrix is the principal defendant, in the instant ease, acquired title to Wheatland and the tram road by deed dated October 1, 1904, from Nathaniel Thayer, surviving trustee, Jones having become the purchaser thereof at a foreclosure sale made by said trustee. In 1918, Jones took up and removed the steel rails from the tramroad, and the instant action was brought to recover said rails or their alternate value.
The plaintiffs based their claim to recover on the ground that Jones and those under whom he claimed had abandoned the right of way for the tramroad, and that upon such abandonment the rails reverted to the
Three errors are assigned: (1) Granting instructions for the defendants, (2) refusing instructions tendered by the plaintiffs, and (3) refusal to set aside the verdict as contrary to the law and the evidence. It will be unnecessary to consider the instructions seriatim for reasons hereinafter made to appear.
The trial in the lower court proceeded upon wrong principles, leading to errors in the instructions which furnished the chief topics of discussion before this court. The initial error and the one which led to others consequent thereon, was in instructing the jury that the rails of the tramroad, by reason of their attachment to the right of way, were “real estate and not personal property.”
Rails laid on the right of way of a railroad company, only as incident to the use of the right of way, and with no intention that they shall remain after the easement has terminated or been abandoned, are an exception to the general rule as to chattels annexed to realty, and retain their character of personalty although affixed to the soil. It is sometimes said that they are in the nature of trade fixtures, though the eases are not always placed on that ground.
In Wiggins Ferry Co. v. O. & M. R. Co., 142 U. S. 396, 415, 12 S. Ct. 188, 194, 35 L. Ed. 1055, it is said: “We agree with the court below that the petitioner is not entitled to recover the value of the rails removed by the receiver from the premises on Bloody Island. They were laid there under a mere easement granted by the petitioner, and obviously with no intention that they should become a part of the realty. As between the landlord and tenant, or one in temporary possession of lands under any agreement whatever for
In Ga. R. Co. v. Haas, 127 Ga. 187, 56 S. E. 313,
Several of the cases cited are examined and considered at length in the opinion. A number of the cases' cited are also reviewed by the annotator in 21 A. L. R., supra. It is said by the annotator, amongst other things: “In several cases the courts have held that a railroad track built as a spur or a switch, and the rails, plates, and ties thereof are not to be considered realty but retain their character as personalty in spite of the fact that they have been affixed to the soil.
“This result was obtained in one case by virtue of considering a spur track to be in the nature of a trade
In Placer Co. v. Lake, etc., Co., 58 Cal. App. 764, 782, 209 Pac. 900, 907, it is said: “The public necessity or requirements or the very exigencies of its purposes may at any time make it convenient and to the interest of the public, as well as to itself, to abandon a certain right of way and remove its track and equipment to another, and therefore we think it only responsive to sound reason to say that while a railroad company lays its tracks and erects buildings for the proper conduct of its transportation business over and across lands under a claim of right, such property cannot be held to become a part of the realty but will at all times retain the character of personalty.” (Italics ours.)
The view thus expressed is sustained by a large number of cases to which we will make simple reference without reproducing the expressions found therein. A number of eases are cited to support the statement of the opinion.
In 11 R. C. L., p. 1080, it is said: “When a railroad has abandoned a track or has been ejected from land on which it has good reason to think it had acquired a right of way, it has been held that the rails and ties cannot be claimed as fixtures by the owner of the freehold, but may be removed by the railroad company.”
In 23 Am. & Eng. Ency. of Law (2d ed.), page 706, it is said: “On the abandonment of its right of way a
While there is much evidence tending to show an abandonment of the easement, there is little, if any, tending to show an abandonment of the title to the rails. It is true that a long time elapsed between the actual use of the tramway and the taking up of the rails, and there were a number of breaks in the line, and this would be important in determining whether or not the easement had been abandoned. But this would not be true as to the rails in the absence of any other evidence of abandonment, where no title to them was asserted by the owners of the servient estates, no act of ownership was exercised over them by such owners and no notice given to remove them. In such case, the presumption is that they remained on the land with the consent or acquiescence of such owners.
•The theory upon which the case was tried directed special attention to the non-use or abandonment of the right of way, and did not deal so specifically on this subject as to the rails, and the testimony on the latter subject is not clear and satisfactory, but we gather from the testimony for the plaintiffs that where the tramroad crossed the public highway in one place the rails were taken up and laid aside and the roadway graded. In one or more places where the tramroad was washed out, the rails were used to bridge the cavity; at another place a few of the rails were used to repair a fence, and in a number of places the ties had rotted and the rails had pulled loose from them, and were more or less scattered along the way.
On the other hand, it was shown by the defendant
The defendant was not bound to remove the rails within any specified time. So long as no claim of title to them was made by the plaintiffs, no objection raised to their remaining on the right of way, no notice given to remove them, and no act done by the plaintiffs which would bring home to the defendant notice that the plaintiffs intended to assert ownership over them, the defendant had the right to presume that the status quo. of the rails remained unchanged.
Abandonment of tangible personal property means that the owner thereof voluntarily relinquishes possession thereof with the intention of terminating his ownership and with no intention of vesting title in another. When such property has been so abandoned, the first person who takes possession thereof for the purpose of ownership generally, and in the absence of special circumstances, acquires title thereto. But mere lapse of time and nonuser, unaccompanied by other evidence of intention, are generally not sufficient to
While some of the instructions given for the defendant were erroneous, still, looking to the whole evidence in the case, no other verdict than the one found could have been properly found by the jury, even under proper instructions. Where this is the case, it has been uniformly held by this court that the verdict will not be set aside. Richmond, etc., R. Co. v. Garthright, 92 Va. 627, 24 S. E. 267, 32 L. R. A. 220, 53 Am. St. Rep. 839; Farmers' Asso. v. Kinsey, 101 Va. 236, 43 S. E. 338; Richmond P. & P. Co. v. Steger, 101 Va. 319, 43 S. E. 612; Southern R. Co. v. Oliver, 102 Va. 710, 47 S. E. 862; Homestead Ins. Co. v. Ison, 110 Va. 18, 65 S. E. 463.
There is no error in the judgment of the trial court and it is affirmed.
Affirmed.
West, J., concurs in result.