Newton v. Louisville & Nashville Railroad , 110 Ala. 474 ( 1895 )

HEAD, J.

This is a statutory real action in the nature of ejectment. The property in controversy is a strip of land, twenty by two hundred and fifty feet, lying alongside of the main line of defendant’s railroad in the city of Montgomery, Alabama. At the time of the trial this strip of land was occupied, in part, by two railroad tracks, one belonging to the defendant and the other to the Alabama Midland Railway. It was shown, without conflict, that, in 1879, the plaintiff purchased of the Mobile and Montgomery Railway Company certain real estate described as follows in the bond for title made to her by said company: “All that piece or parcel of land lying and being in the county and city of Montgomery, in the State of Alabama, and more particularly described as that part of lots 4 and 5 and the west half of lot 3 in square 19, according to Hanrick’s plat, that lies south of the railway cut. ” The bond for title was made on the 8th day of August, 1879, and a deed following it was executed on the 3d day of November, 1881, the description of the property being alike in the two instruments. It was admitted that the strip sued for was a part of said lots 4 and 5 and west half of lot 3, and the chief controversy was over the question, did it or any part of it lie south of'the railway cut at the time of the plaintiff’s purchase. The defendant claimed furthermore that it had been in tho adverse possession of the premises for ten years prior to the bringing of the suit.

The contention of the plaintiff in the court below may be reduced to two. propositions-: First, that under the description contained in the bond for title and deed, she took from the lower and inner edge of the cut instead of from the upper and outer edge. Second, that if such was not the proper construction of the deed, in any event, the greater part of the property sued for lay south of the upper and outer edge of the cut at the time of her purchase. So far as the first proposition is concerned, we have no hesitancy in holding that the lower court committed no error in construing the deed adversely to plaintiff’s contention. The words “railway cut” have a certain and definite meaning, and comprise as well the sloping sides as tho deepest part of the excavation. The language of the description is plain and unambiguous, and leaves no room for doubtful construction. It could only refer to that portion of the lots lying adjacent to and south of the upper line of tho excavation. The cases to which we have been referred by appellant’s counsel assert the familiar doctrine, that where land is conveyed as bounded by a highway the grantee will, in the absence of words of exclusion, take to the center of the highway, if the grantor be the owner thereof. That principle is based on the presumed intention of the parties and, it is very obvious, can have no application to the case in band. As being opposed to this, the proper construction of the deed, charges 1 and 2 requested by plaintiff were rightly refused.

There was evidence tending to show that the defendant had had adverse possession of the premises for more than ten years prior to the bringing of the suit. This phase of the evidence was omitted from the postulate in charges 3, 4 and 5, requested by plaintiff, and they were faulty for that reason.

Charge number 7, which was given by the court, at defendant’s instance, reads as follows : “If the jury believe from the evidence that the toe or slope of said cut was excavated in 1880 by or under the supervision of Mr. B. .Dunham, and that defendant has had possession of said land ever since, then plaintiff cannot recover.” The evidence had shown that when the excavation referred to was made in 1880, the upper line or margin of the cut was not disturbed. The only material part of the charge, therefore, is that portion which instructed the jury that if defendant had had possession of the land since 1880, the plaintiff could not recover. It is a fundamental principle of the most familiar character that the mere possession of land will not constitute adverse possession. All presumptions and intendments are favorable to the title, as we have many times said, and possessions are not presumed to be hostile, but rather in subordination to it. The burden of proving the possession adverse — tha.t it was taken and held under a claim of title hostile to the title of the true owner — rests upon the party asserting it.—Robinson v. Allison, 97 Ala. 596; Dothard v. Denson, 72 Ala. 544; Alexander v. Wheeler, 69 Ala. 332. It was not enough for defendant to have shown merely, that it had had possession of the premises for the time necessary to perfect the statutory bar. The charge leaves wholly out of view the material inquiry, was such possession adverse to that of the true owner. It was manifestly erroneous, and must work a reversal.

For the reasons already pointed out, there was no error in the 8th charge, given at defendant’s request, which instructed the jury that plaintiff “did not take title in a slanting direction, but only took from the top of the cut in a vertical direction.” What the defendant meant by this was that the plaintiff did not take by her deed the sloping side of the cut, and it was, no doubt, so understood by the jury.

The 9th charge requested by defendant was wholly irrelevant to any issue of the case. The defendant by its plea of not guilty admitted having possession of the premises sued for, and whether it was or was not responsible ‘ ‘for any excavation made by the laying or building of the track known as the Alabama Midland Railway” was foreign to the inquiry, whether the land sued for belonged to the plaintiff or the defendant. That question might arise in an action of trespass quare clausum fregit, but could not be raised in an action of ejectment, brought to determine whether plaintiff or defendant is entitled to the possession of the premises sued for.

Reversed and remanded.