Alabama & V. Ry. Co. v. Joseph , 125 Miss. 454 ( 1921 )

Ethridge, J.,

delivered the opinion of the court. “

The appellant brought suit against the appellees and the city of Jackson to cancel any claim or ownership in a certain strip of ground in the northeast angle of the intersection of Capitol street and Gallatin street in the city of Jackson, the appellant having through condemnation proceedings condemned the strip of land for railroad purposes in the year 1903. The streets cross approximately at right angles, Gallatin street running east of north and west of south, and Capitol street running north of west and south of east, and the railroad track runs approximately southeast and northwest at this point. Shortly after the railroad condemned this strip of land the city of Jackson paved Capitol street and subsequently Gallatin street, and laid pavement over a portion of the land embraced in this angle, condemned as above stated, and the public has used the part so paved as a part of the street. The railroad company acquired this strip of land principally for the purpose of throwing vehicle traffic off of its tracks, it having three tracks within the intersection of these streets. It also acquired it for the purpose of keeping said space free from obstructions so that its engineers could better see persons and vehicles approaching the railroad track from either street.

Prior to the year 1916 there was- a frame building occupied as a market in the northeast angle of Gallatin and Capitol streets north of the strip of ground condemned by the railroad. In 1916 A. Joseph & Co., the appellees, constructed a brick building-up to the line of the said strip heretofore condemned, and laid a sideAvalk on the part of •the said strip next to the private property line, and erected a metal awning or shed some eight feet from the surface of the walk constructed, which awning is approximately flat. The proof shows that engineers approaching the crossing from the west cannot see vehicles approaching on Capitol street going northwest, and that engineers approaching from the east cannot see portions of North Gal-latin street, formerly Clark street, approaching from the northeast.

- The city of Jackson made no defense to the suit, and a decree pro confesso was taken against the city. The other appellees, who were defendants, answered, denying the allegation that the railroad company was entitled to the land embraced in this angle, setting ap that the city of .Jackson has acquired an easement for a street by adverse user over this lot of ground, and that the said defendants had permission from the city to erect the said awning over the said land. It is denied, further, that the awning obstructed the view of the engineers, and it was contended that the railroad kept á flagman at this crossing, and that the engineers would obey the- flagman’s signs, and that the awning in no Avise interfered Avith the operation of the engines of the complainant.

The proof shoAvs that about eight regular engines pass this crossing each twenty-four hours, .and that numerous SAvitching engines cross daily, the yards of the complainant being to the west of the crossing and its freight station to the east of said crossing. The chancellor decreed that five feet on each end of the awning obstructed the vision from the engines and constituted a nuisance, and ordered' the awning .abated to that extent. The decree recited:

“It appearing to the court from the evidence that the city of Jackson had acquired an easement by dedication and user in said property for a street and sidewalk, and that the rights of the city being coextensive with all that said easement confers as such upon the city, including the right to permit a shed over said sidewalk, Avhich it appears said city did and does permit and of which it makes no complaint,” etc.

It appears from this recital of the decree that the chancellor’s view was that, inasmuch as the city had acquired an easement by user, it had poiver to permit the awning to be placed upon the said property. The law is that to acquire title to land by adverse possession the possession must not only continue for the statutory period, but it must be exclusive and under claim of right. The proof does not show that the railroad was excluded from this property at all by the city. The railroad Avas constantly in use of its tracks, and using the property for the purposes for which it was acquired, and the facts show that both the city and the railroad company were making such use of tbe strip of ground in question as would not interfere with the railroad’s rights. Under these circumstances the city merely acquired such rights as the use vested in it. That is to say, a mere right of passage over the ground for persons and vehicles, and not the right to obstruct or erect any building upon the ground. It had acquired no right to erect sheds over the ground, and, of course it could confer none upon any other person. In Paxton v. Y. & M. V. R. R. Co., 76 Miss. 536, 24 So. 536, this court said:

“The railroad company does not lose its title to the right of way by a mere nonuser, and the' running of trains is a constant assertion and occupancy of its right of way to its full extent as granted, so as to preclude a loss of it except by a strictly hostile possession of it for ten years.”

In Wilmot v. Y. & M. V. R. R. Co., 76 Miss. 374, 24 So. 701, this court said:

“The duties imposed by law upon a railroad company of safely carrying persons and property and of protecting employees and other persons lawfully upon the right of way from dangers arising from any obstruction or hindrance of the servants of the company in the performance of their duties, and the responsibility laid upon the company for the performance of such duties, require the right and power in the officers of the company of excluding at their pleasure all persons from the right of way. The occupancy of the right of way by the railroad company is practically exclusive, and the owner of the servient estate could cultivate it only by the consent of the railroad company.”

As a general rule a third person cannot assert title for a defendant setting up the statute of limitations. But to make the statutes of limitations applying to the possession of another person available, a property right as distinguished from a mere license must exist. In the present case The city of Jackson made no defense, and asserted no claim to the property in question, but as under the law of this state the officers of the city are under duty to plead the statutes of limitation where rights have accrued thereby to the municipality, the failure of the city to plead in this case will not foreclose that question in any future proceeding, because the proof shows that there was a constant user for' passage of a portion of the strip of land involved as a street. And to this extent the judgment will save such rights as the city may have. But it is clear from the facts that the defendants Joseph and George have acquired no rights as against the railroad company, and the judgment of the chancellor will be reversed, and a judgment entered here for the complainant as prayed for against the defendants Joseph and George.

Reversed, and decree here.