Buck v. L. & N. R. R. , 169 Ala. 29 ( 1910 )

SIMPSON, J.

This is an action by the appellant for trespass to land by entering, constructing, or building, and maintaining a railroad track on said land. The facts are uncontroverted that the right of way was in the possession of the defendant years before the plaintiff acquired the title to the land described in the complaint, and the embankment for the roadway thrown up; but the track has been laid since the plaintiff acquired said land, so that, if the plaintiff is entitled to any damages in this action, it is not for the original taking, hut only for such damages as may hake accrued by the placing of the track and operating the railroad thereon.

This case was before this court at.a previous term (159 Ala. 305, 48 South. 699), in which it was held that, in order to recover, the plaintiff must have been in possession, actual or constructive, at the time of the trespass; that the measure or damages is the difference in the value of the land before and after the trespass; that the defendant is not liable for acts of excavating, etc., done by its predecessor; that constructive possession, under a deed, does not extend to a portion of the tract in the actual possession of another; that, in the absence of proof of abandonment, actual possession under color of title is presumed to continue, when once shown. It was also held that there was no error in admitting the deed to the right of way from Village creek to the Birmingham Mineral Railroad (the predecessor of the defendant), and that the plaintiff’s right to recover was a question for the jury.

In the first place, the evidence is not without conflict as to whether the right of way is on the plaintiff’s land at all. The witness P. S. Milner (civil engineer and surveyor) testified that he did not include the street in his survey of plaintiff’s land, that according to his recollection the land now occupied by the street was vacant property when he surveyed, and that it depends on the width'of the street as to whether the track is on the street, and he knows nothing about the streets; and the witness Ryan said: “The west end of this property is near the railroad. I am not positive how much of the railroad is on the property.” The plaintiff himself, and others, testify that when he inclosed his land he did not inclose the railroad bed. But, under the facts of this case, even if it be admitted that the roadbed is on the plaintiff’s land according to his title deeds, in order to show his possession it is necessary to show that the defendant had abandoned the right of way.

The plaintiff asked the direct question of the witness Willoughby whether the old grade was abandoned; and he answered, “No, sir; it was not.” As this was responsive to his own question, plaintiff cannot raise the illegality of it. To constitute an abandonment there must be a concurrence of the intention to abandon and an actual relinquishment of the property. “There must be a clear, unequivocal, and decisive act of the party.” — 1 Cyc. 4, 5, notes; 33 Cyc. 135, 221, and notes. It was a matter for the jury to consider whether or not the road had been abandoned by the defendant. or its predecessor, and whether or not the plaintiff was in possession constructively at the time of the supposed trespass.

The principles decided by this court on the former hearing of this case, and those herein stated, dispose of the assignments of error argued. Those relating to the measure of damages are not material, as the jury held that plaintiff was not entitled to any damages. There appearing no error on the record, the judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.