Mobile & O. R. Co. v. Strain , 125 Miss. 697 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellant railroad company by hill in the chancery court seeks to confirm its title and remove therefrom as a cloud thereon the alleged pretended claim of title of the oppeliee, C. R. Strain, to a certain lot or piece of ground situated in the town of Tupelo. The answer of the defendant, Strain, denies the title of the complainant railroad company and claims title to this land because of the adverse, open, notorious, and continued possession of the land under claim of title by himself and his predecessors in title for a period of about thirty years. The case was tried on pleadings and an agreed statement of facts, and the bill of the complainant was dismissed, from which decree this appeal is prosecuted.

The uncontradicted facts shown by the record material to this decision are as follows: On July 7, 1868, Mayfield Reese sold to Samuel M. Robertson a certain lot in the city of Tupelo, designated as the Johnson Hotel property. On tbe 14th day of the same month and year, or seven days after the Robertson conveyance, Mayfield Reese conveyed to the Mobile & Ohio Railroad Company certain lands within the city' of Tupelo. The consideration recited in the deed ivas the building of a depot house by the railroad company on this land. The lot in controversy was a part of the land conveyed by Reese to the railroad company. It is situated immediately south of and adjoining the Johnson Hotel property. The depot is almost due west of the lot in controversy. The tracks of the railroad are between the depot, the Johnson Hotel property, and the lot in controversy. The hotel property and the lot in controversy are about fifty feet east of the main line track of the railroad company. It is agreed that the railroad company has a perfect record title to this lot and that Strain has no title to it, unless he has acquired it by adverse possession.

The record further shows that before the deed of conveyance from Reese to Robertson, under some sort of an agreement of purchase Robertson had erected upon this land a hotel and had made some arrangement with the officials of the railroad company for trains to stop at the hotel for meals, and this hotel ivas thus-used for two or three years. A part of the agreement is as follows:

“No garden was inclosed and cultivated in connection with said hotel until 1868. In 1868 said Robertson, presumably with the consent of the Mobile & Ohio Railroad Company officials, many of whom took their meals at his hotel from time to time, inclosed the lot here in controversy just south of said hotel lot for a garden, since which time it has been continuously inclosed and used as a garden in connection with said hotel property. . . . The exact time in 1868 that said inclosures were made being unknown, but such inclosure was early enough to make a garden. . . . That the inclosure of the garden was by picket fence, and same remained in place' for a period of forty-seven years, continuously, until the present structure was put there in 1915.” ,

The agreement further states that before 1891, the deeds to the hotel property did not include the lot in controversy. Again:

“Since 1891 the deeds to said Johnson Hotel property in addition to describing the same as set out in the deed from Reese to Robertson, describe in varying language ‘grounds, garden, stable lot, and attached lands belonging to said hotel! ”

Again : “The grantor of the Johnson Hotel property, who first made a deed and added to the description the language ‘grounds, garden, stable lot, and attached lands belonging to said hotel/ had owned the Johnson Hotel property for sixteen years prior to 1891; and in making said conveyance he pointed out as a part of the Johnson Hotel property this particular garden adjoining said hotel property on the south which is the property involved in this cause. Said grantor pointed out said garden as a part of the land he intended to convey by his deed and which he claimed to own. This character of conveyance of said Johnson Hotel property has continued down to and including the conveyance to the defendant, Strain; and since 1891, and for about thirty years, Strain, the defendant, and those through whom he claims title to said Johnson Hotel property, have claimed this garden (which is the lot involved in this cause) as a part of said Johnson Hotel property, and have been in the open, notorious, adverse possession thereof claiming title thereto.”

During the whole of the time from 1868,, the grounds in controversy have been fenced and used as a garden by the owners of the hotel property. During all of this time various and sundry officials of this railroad company, includ-' ing the president, have frequently visited Tupelo and had an opportunity of observing the continued open and notorious possession of this lot by the owners of the Johnson Hotel property. Since 1891 neither Strain nor his grantors have known that the railroad company laid claim to this lot. It is ñírther agreed that during the time that Strain and those through whom he claims title had been in possession of this property no official of the railroad company having anything to do therewith had actual notice of this claim and possession, and no other notice of it than through the deed records of the county and the opportunity of notice through the visits of the officials of the company to Tupelo; that the officials having anything to do therewith had no occasion to look into the title of the lot until just before this suit was brought, at which time it was deemed advisable by the railroad company to build a side track for a coal company over a part of this lot; that this coal was to be shipped from other states to Tupelo, and the track was to be built for the purpose of increasing the interstate commerce of this railroad; that previous to this time this lot had not been needed for railroad purposes by the appellant company. The agreement also shows that the appellant railroad was granted lands. by the United States for the purpose of building a railroad under an act of Congress approved March 3, 1849 (9 Stat. 772), and confirmed by the Mississippi legislature in 1852 (Laws 1852, chapter 1); that a large part of the appellant’s side tracks and branches are built on the lands above granted by Congress and the state of Mississippi, but the particular land in controversy in this cause iyas not included in said grants; that none of the lands within the- corporate limits of Tupelo was acquired under the federal land grant.

It is the contention of the appellant that the holding and possession of this lot by Strain and those through whom he claims was not adverse and hostile until the time the property was needed by the appellant company upon which to build this side track; that up to this time this possession was permissive. Appellant relies on this clause of the contract, namely:

“In 1868 said Robertson, presumably with the consent of the Mobile & Ohio Railroad Company officials, many of whom took their meals at his hotel from time to time, inclosed the lot here in controversy just south of said hotel lot for a garden, since which time it has been continuously inclosed and used as a garden in connection with said hotel property.”

This agreed statement of facts, however, further shows that this land continued to he used as a garden by all of the subsequent grantees of Robertson, and that the first grantor who .included this garden in his deed in 1891 had been in possession of this property for sixteen years and pointed out this garden as a part of his property which he claimed to own. The agreement then recites that:

“This character of conveyance . ... has continued down to and including the conveyance to the defendant Strain, and since 1891, and for about thirty years, Strain, the defendant, and those through whom he claims title, . . . have claimed this garden as a part of the said Johnson Hotel property, and have been in the open, notorious, adverse possession thereof, claiming title thereto” — and further that since 1891 Strain and his grantors have not known that the appellant company claimed title to this lot. From this agreement it is apparent that the appellee and his predecessors in title certainly from 1891 have exercised all of the rights of ownership possible to this lot. They have been in the exclusive, open, notorious possession thereof, claiming title. Their deeds to this lot were also on record. The only thing that could possibly have been done by them which was not done was actually notifying the appellant company through the proper officials of their claim to this property. The original possession of Robertson to this lot'presumably with the permission of the railroad officials as to its duration is not shown. This permission, however, under this statement was purely a personal one to Robertson, and it cannot be presumed from this that his remote grantees were only exercising this permissive possession. Especially is this true in view of the fact that the party who sold the land in 1891, and who had been in possession of it since 1875, by deed included this land, and explained to his vendee that he owned it, and from 1891 to the present time these vendees both through their recorded deeds and their acts in pais have exercised the very highest degrees of ownership over this land that are susceptible of being so exercised.

While both the appellant and the appellee claim title through a common source, namely, Mayfield Reese, the Johnson Hotel property proper was first sold to Robertson before the railroad company purchased its lands. It is not necessary for us to decide whether the railroad company’s deed from Reese was a fee-simple grant or merely an easement, as we are not here presented with a case of a grant to a railroad company of a right of way and a subsequent claim by the grantor or by those claiming under him of title by adverse possession to part of the right of way. The cases cited in the brief of the appellant upon this proposition are mostly cases of this latter character, an example of which is that of Railroad Co. v. McWhorter, an Alabama case, 202 Ala. 455, 80 So. 839. In that case there was a grant of an easement to the railroad company, and it was held that the possession of the grantor or his successors in title of a portion of the right of way not being actually used by the railroad could not be adverse to the railroad. In that case it was further held that the grantee of the easement could use the entire strip if necessary or proper for the purpose of the grant, but that it could not exclude the grantor, unless for such purposes. In this case the appellee is not claiming the lot in controversy through any grant from Reese; consequently he is a stranger to the title claimed by the railroad company. See, also, Roberts v. Railroad Co., 73 Neb. 8, 102 N. W. 60, 2 L. R. A. (N. S.) 272, 10 Ann. Cas. 992. The decision in this latter case is briefly summed up in the concurring opinion wherein it is said that the occupancy of a portion of the right of way of the railroad company by the owner of the servient estate was not inconsistent Avith the easement.

In the case of Graham v. Railroad Co., 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344, it is stated that:

“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.”

This doctrine is approved in the case of Railroad Co. v. Ruttan, 90 Ark. 178, 118 S. W. 705. See, also, note to case of Railroad Co. v. Dawes, Ann. Cas. 1917A, 1274.

In this state, contrary to the holdings in some of the states to which reference has above been made, it has been held that the owner of a servient estate can cultivate the right of way only with the consent of the railroad company, and that the occupancy of the right by the railroad is practically exclusive. Wilmot v. Railroad, 76 Miss. 374, 24 So. 701. It is further held in this case that the owner of a servient estate may acquire title to parts of the right of way by adverse possession. In that case it is held that:

“Such occupancy by the owner of the fee must be strictly exclusive, and under distinct color of right, in order to bar the entry of the railroad company. It should distinctly appear that the owner of the fee is not attempting to exercise his use of the land in harmony with the right of the railroad company, but his occupancy must be distinctly hostile to that of the company.”

It is also further said in speaking’ of the owner of the fee: “But if he should fence a paid of the right of way against the company itself, and claim, to- the knowledge of the company, a right to use it as his own, discharged of servitude of the company, or under circumstances that necessarily gave the company notice of such claim, and should continue such possession for 10 years, the company would-be debarred of all right.” Wilmot Case, supra.

To the same effect is Paxton v. Railroad Co., 76 Miss. 536, 24 So. 536.

Under the statement of facts in this case, the permissive possession of Bobertson of this lot being purely personal, ceased when Robertson gave up possession of the hotel property and certainly since 1891 the appellee and his grantors through their open, notorious, exclusive, and adverse possession of this property claiming title thereto, together with their recorded deeds, was constructive notice to the appellant of this claim.

It is next contended by the appellant that title to this lot cannot be acquired by adverse possession far two reasons : First, because section 184 of the state Constitution provides that “all railroads which carry persons or property for hire shall be public highways, and all railroad companies so engaged shall be common carriers;” second, because this railroad company is what is termed a “federal land grant railroad,” and under the act of Congress above referred to “the said railroad and branches shall be and remain a public highway, for the use of the government of the United States, free from toll or charge upon the transportation of property or troops of the United States;” that under this act it is also made a public highway charged with the duty of transporting free of charge property and troops of the United States.

First. Section 184 makes railroads public highways. There are, however, many differences between a railroad right of way and streets and public roads. The rights of the public to the use of the streets and public roads cannot be lost by adverse possession. Whitherspoon v. Meridian, 69 Miss. 288, 13 So. 843; Briel v. City of Natchez, 48 Miss. 423; Vicksburg v. Marshall, 59 Miss. 563. When a street or public road is used for purposes other than those to which the land is dedicated, the right of the people themselves, the right of the public generally, is affected by such use, and the people in such cases cannot be thus deprived of their rights. We do not think this rule is applicable, however, to a part of a railroad right of way which is not in actual use. The right of way, in a sense, is a public highway, and the land acquired therefor, either by purchase or condemnation proceedings, though devoted to a public use, is the private property of the railroad corporation. The officers of this company are not public officers. The objects and purposes of the corporation, though public in a sense, are also private; it is operated for gain, for the benefit of the stockholders. Streets and public highways belong to the sovereign or to the people; they are created for this pulpóse, and not for the private benefit of any individual or corporation. These differences are well expressed in the opinion of the Alabama Supreme Court in the case of Warehouse & Storage Co. v. Railroad Co., 382 Ala. 516, 62 So. 745. Quoting from that opinion:

“Sovereign rights are not necessarily involved in the use of a portion of a railroad right of way for private purposes. While there might be, and sometimes is, such an obstruction of' a railroad right of way as to constitute a public nuisance, the one in question is not such an obstruction or use. The wrong here complained of is private and not public.”

Just as in the case at bar, for the proper operation of the railroad it is not necessary that it have possession of this lot, which is fifty feet from its main line track. The very fact that it has not used this lot since 1868 is conclusive of the fact that it is not necessary for the operation of the railroad.

To those lands of a railroad company not actually necessary for the operation of the railroad title by adverse possession may be acquired. The authorities in other states upon this question are divided, as may seem by reference to the following reports: Note in 87 Am. St. Rep. 766; 2 Ann. Cas. note, page 718; Dulin v. Railroad Co., 73 W. Va. 166, 80 S. E. 145, L. R. A. 1916B, 653, Ann. Cas. 1916D, 1183, and note, note to the same case in L. R. A. 1916B, 657.

The questions decided in the Paxton and Wilmot Gases, supra, arose after the adoption of the Constitution of 1890, but it does not appear from the briefs of counsel or from the opinion of the court that section 184 of the Constitution was expressly called to the attention of the court.

Second. Since tbe lot in controversy was not acquired either through the United States or the state of Mississippi, but was purchased from a private individual, and since this lot is not necessary for the use of the railroad company in transporting the troops or property of the United States, the grant from the government or the tenure by which it holds title to these lands from the government or the state and whether or not title by adverse possession can be acquired as to any of these lands granted by the government or the state is not presented by this record.

The decree of the lower court is affirmed.

Affirmed.