Graham v. St. Louis, Iron Mountain & Southern Railway Co. , 69 Ark. 562 ( 1901 )

Riddick, J.,

(after .stating the facts). This is an action of ejectment brought by the railway company to recover twelve acres of land which the ancestor of defendant had sold and conveyed to the company for railway purposes. The defendant contends that all the right and interest in this land conveyed to the company by the deed of his father was forfeited by reason of a failure to comply with a condition in the deed. The clause of the deed referred to is as follows: “To have and to hold the same to the said party of the second part so long as said lands are used for the purpose of a railroad, and no longer.” The proof shows that the railroad was built, and that the company has continuously used the greater portion of the land conveyed for the purposes mentioned, but because it has not built upon and occupied the twelve acres of the tract in controversy the contention is made that it was forfeited by virtue of the provision in the deed above quoted.

In determining the. meaning of this clause in the deed, we can look to the circumstances under which the deed was made. The land was conveyed to the company before it had constructed its road on the land to be used for depot grounds, right of way, side tracks and “Y,” which it expected to construct in the future. The proof shows that the company, looking to the probable future needs of the road, purchased and paid for more land than it needed for immediate use, though not more than it would probably need in the future. Construing the language of the deed in the light of these circumstances, we think there was no forfeiture. The condition was complied with on the part of the company by constructing its railroad upon and across the land conveyed and putting so much of said land as its immediate needs required to use for depot grounds and side tracks, that being the greater part of the tract, and by holding the remainder for the future needs of its railroad; in the meantime not putting it to another or different use.

This land was not given to the company to secure the erection of shops or something of that kind. It was purchased and paid for by the company, which afterwards constructed its railroad as set out in the deed. If the construction of the road was a part of the consideration of the deed, the grantors have secured that advantage. They were not in any way interested in the construction of the “Y” or side tracks for which the company now wishes to use the land in controversy. The delay in constructing it did not operate to their injury, but, on the contrary, they were thus permitted to use and cultivate the land several years longer, and thus gained an advantage by the failure of the company to put the whole tract to immediate use.

Conditions subsequent are not favored, and must be strictly construed, and we see nothing in this deed that required that the whole tract should be at once used for railroad purposes. We think the ruling of the circuit judge on this point was correct, and the contention of appellant must be overruled.

The next question is raised by defendant’s claim of title by adverse possession. On this point the circuit judge held that a vendor could not defeat the right of his vendee by adverse possession, and that the same rule would apply to the defendant who holds under the will of his father, one of the vendors. He therefore directed the jury to find for the company on the issue of adverse possession. Considered abstractly, this statement of the law as given by the trial judge was not correct. Though the continued possession of the land by the vendor after conveyance executed is not, of itself, sufficient to show a holding adverse to the vendee, yet there is nothing in their relations which will prevent the vendor from acquiring a title by adverse possession. But before the vendor or those claiming under him can acquire title in that way against the vendee the intention to hold adversely must be manifested by some unequivocal act of hostility, such as to give notice to the vendee of the intention of the vendor to deny his right and Hold adversely to him. Until this is shown, the statute does not commence to. run. 1 Am. & Eng. Enc. Law (2d Ed.), 818, 819; Connor v. Bell, 152 Pa. St. 444; Paldi v. Paldi, 84 Mich. 346; Sherman v. Kane, 86 N. Y. 68.

The distinction between a vendor and a stranger in such a case relates to the character of evidence necessary to show that the possession was adverse. If the parties are strangers in title, possession and the exercise of acts of ownership are, in themselves, in the absence of explanatory evidence, proof that the holding is adverse; whereas if the vendor, after having executed deed, continues to remain in possession, the natural and reasonable inference, in the absence of evidence to the contrary, would be that he holds in recognition of the rights of the person to whom he has conveyed; it not being supposed, from mere acts of possession and ownership not inconsistent with the rights of the vendee, that the vendor intends to deny the title he has conveyed.

How, in this case we see no evidence of any unequivocal act of hostility on the part of the defendant' against the rights of the company, sufficient to put it upon notice of an adverse claim, until shortly before the commencement of this action,- when the defendant, speaking to an agent of the company, denied that it owned a right of way across his field. This was notice to the company, but previous to that the evidence shows no act of defendant so inconsistent with the right of the company as to bring to it notice of an adverse claim. So far as the land in controversy is concerned, there was no. change in possession after the execution of the deed to the company. While the company was using other portions of the tract conveyed, it had no immediate need for this part, and suffered it to remain within the enclosure of the grantor, and to be cultivated by him. After the death of the grantor, his son, the defendant, took possession, and continued to cultivate it, and to clear and put in cultivation a small portion that was in timber. The company had no right to farm the land, or to use it for other purposes than those named in the deed, and until it was actually needed for the purposes of the railroad there was no reason why it should object to the use of it by defendant. This use of it did not injure the company. On the contrary, such cultivation, by removing timber, stumps and other obstructions, would naturally tend to its benefit. The possession of the vendor and his son was to the mutual benefit of the company and themselves, and was not in any way inconsistent with the rights of the company under the deed. We are therefore of the opinion that the circuit judge did not err in holding that there was no evidence of an adverse holding shown.

But counsel for defendant earnestly contends that the judgment should be reversed because, as he says, the instructions given by the trial judge prevented him from being heard on the facts. We cannot agree with this contention. Defendant admitted that his ancestor had conveyed this land to the railway company, and pleaded a forfeiture and adverse possession as defenses; but, as before stated, he showed no forfeiture nor any overt act of hostility to the title of the plaintiff calculated to put it upon notice of an adverse claim until only a few days before the action was commenced. There was, therefore, in our opinion,no question of fact to submit to the jur)r, and it was totally immaterial what the form or language of the instruction was by which the trial judge directed a verdict for plaintiff. The evidence making it plain that a direction to find for the plaintiff was proper, whether that was accomplished by a simple direction to so find, or by an instruction which effected the same result, is quite unimportant, for no prejudice resulted to defendant from the form of the instruction. Courts do not sit to settle abstract questions of law, but to determine rights of parties involved in the litigation, and when it is clear that those rights'have been correctly adjudicated by the trial court the judgment should be affirmed, notwithstanding there may have been formal defects in the charge to the jury. The substance of the instructions in this case was that there was no adverse holding, and this we think was correct.

TJnder the peculiar language of this deed, we are not sure that the company took more than an easement in the land, but a railroad right of way, though an easement, gives the company the right to exclusive possession, and it may maintain ejectment against one wrongfully holding possession of its right of way. Tenn., etc., R. Co. v. East Ala. R. Co. 75 Alá. 524.

Though it is doubtful whether the company had any right to recover for the value of the use and occupation of the land prior to the notice to quit, still that question does not seem to be raised or presented in the brief. On the whole case, we think the judgment should be affirmed, and it is so ordered.