Yancey v. Savannah & Western Railroad

101 Ala. 234 | Ala. | 1893

STONE, 0. J.

This case was submitted on an agreed statement of facts, to be set out in the report of the case. The suit was commenced on January 18, 1890. The deed from plaintiff to defendant, under which defendant claims title, was executed December 10, 1872. By this deed the grantor granted to the Savannah & Memphis Railroad Company, of which the defendant is the successor, the right of way, one hundred feet wide, over certain described lands upon the recited consideration “running their contemplated railroad on and along his lands, as well as in consideration of the sum of one dollar to him in hand paid. ’ ’ Immediately following the habendum clause of this deed is the following language : “ Upon condition and it is expressly understood that should the said railroad, contemplated as aforesaid, be not located and established on and along said stretch, tract or parcel of land, described in the above and foregoing indenture, then said indenture is to be wholly null and void, and of no effect.”

‘ ‘ Shortly after the execution of the deed hereinbefore mentioned the Savannah & Memphis Railroad Company surveyed its • line of road to Birmingham, Ala., and located its right of way and levelled and graded the roadbed through the lands sued for and embraced in the deed.’ ’ The easement, with right to possess and occupy, thereby passed to the grantee ; and it was thus in actual possession of the tract of land conveyed. It must be regarded as holding adversely to all the world, including its vendor. The re-entry recited in the agreed statement of facts, by which the plaintiff sought to establish the inception of his adverse holding, is not sufficient to originate a right by adverse possession. “By the execution and delivery of a deed of land the entire legal interest in the premises becomes vested in the grantee, and if the grantor continues in possession afterwards, his possession is not that of owner, but of a tenant of the grantee. He will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee.” — Burhans v. Van Zandt, 7 Barb. (N. Y.) 91; Butler v. Phelps, 17 Wend. (N. Y.) 642.

But if it were otherwise, and his re-entry was sufficient to orginate an adverse holding, liis possession was not of sufficient duration to revest the legal title in him. It was but little more than eight years. Ten years, under our jurisprudence, are necessary to mature a right by adverse possession.

Again. The plaintiff is in no position to maintain the present action. The only condition on which the conveyance was to become null and void had been met and fullfilled nearly three years before he brought his suit. The railroad had been located and established on and along said stretch, tract or parcel of land when he instituted his suit. The main consideration for the conveyance was the building and maintaining of a railroad through his property. This had been done, and plaintiff ■ had had the advantage and benefit of this consideration for quite a long time when he complained.

We discover no error in the finding of the circuit court, and the judgment is affirmed.