Mobile, Jackson & Kansas City Railroad v. Kamper , 88 Miss. 817 ( 1906 )

Mayes., J.,

delivered the opinion of the court.

The bill filed in this case shows that Hamper is still in possession of the property. It is only necessary for us to say that we think the action of the lower court in overruling the demurrer was proper; but, this appeal being prosecuted for the purpose of settling the principles of the case, we deem it necessary to say that complainant will not be allowed to show that the donation of the land for “railroad purposes only” was meant for the purpose of being used only for the road to be built from Mobile, Ala., through Hattiesburg, to Jackson, Miss. But the land will be deemed to have been used for the purpose of its donation when it is shown that it is used for any railroad purpose by the defendant company, appellant. The demurrer to the bill admits all the facts, and thereby admits that appellant has abandoned a part of the land conveyed by appellee and its use for railroad purposes. It only remains for us to say that the appellee should be allowed to recover such part of the land conveyed as is shown to have been abandoned by appellant, and that he should be denied relief as to such parts of the land conveyed as is shown that appellant is using for railroad purposes.

Let the decree be affirmed, and the cause remanded, to be proceeded with in accordance with this opinion, thirty days being allowed defendant to answer after mandate filed in the court beloiu.