Scott v. Mississippi Eastern Ry. Co.

Ethridge, J.,

delivered the opinion of the court.

The appellant filed a bill in the chancery court of Clarke county against the Mississippi Eastern Railway Company and the Long Bell Company, to enjoin them from further using and'operating a line of railroad across the lands owned by the appellant described as the east half of the southwest quarter of section 6, township 2, range 16 east, less a lot in the southeast corner thereof owned by Flower Roberts, and for the statutory penalty for certain trees cut upon the said land.

(It appears that the land was formerly owned by the Mobile & Ohio Railroad Company, which was represented in its land sales by the Alabama Land & Development Company as sales agent. The Alabama Land & Development Company entered into a contract with the Mississippi-Lumber Company, the predecessor in title of the right of way of the Mississippi Eastern Railroad Company, by which contract the Mobile & Ohio Railroad Company conveyed certain timber and rights of way over its lands, including the lands now owned by the complainant. By the said contract the right of way over the land in question was not described with particularity as to the width' of the right of way, but the general terms— “A right of way for their logging railroad and roads over all of the lands embraced in this contract, and after land has been released as specified in clause 10 and 31, the right of way for the logging railroad shall be reserved as long as necessary for the operation of the milling plant of said second party.”

In pursuance of this contract the Mississippi Lumber Company constructed a logging road on the above-described lands and operated its engines and cars there-over in logging their mill. The contract also provided that the rights might be assigned to any company which would not conduct the business, on a lesser scale than the Mississippi Lumber Company. Afterwards the Mississippi Lumber Company incorporated the Mississippi Eastern Railway Company and conveyed to it its line of track, right , of way, cars, and equipment, and also conveyed to the Long Bell Company its mill plants, timber, etc., which company was having logs for its mills transported over the said logging railroad by the Mississippi Eastern Railway Company; the said Long Bell Company being a large lumber manufacturing corporation engaged in the business on a much larger scale than the Mississippi Lumber Company. Afterwards the Mobile & Ohio Railroad Company through its agent sold to J. M. Guthrie the lands involved in this suit, reserving the right of way for the Mississippi Lumber Company’s logging railroad in the following language:

“Excepting a right of way for the Mississippi Lumber Company’s logging railroad as long as may be necessary for the operation of their milling plant.”

At the time of the making of the said deed, the logging-road was being constructed and was being operated across the lands of the Mississippi Lumber Company.

On the 8th day of November, 1908, J. M. Guthrie and wife conveyed the said lands above described to L. C. Rouse, and in said deed failed to reserve the right of way of the said logging road or railroad. L. C. Rouse in turn deeded to the appellant Scott the said land on the 26th of July, 1920, failing likewise to reserve the right of way across the said land in favor of the railroad company. On December 22, 1921, the Farmers’ Loan «fe Trust Company, which acquired title from .the Mobile & Ohio Railroad Company, conveyed to the Mississippi Eastern Railway Company by release and quitclaim all the right, title, and interest which the said Farmers’ Loan «fe Trust Company as trustee has or may have in the said lands, describing the lands in controversy and other lands, reciting certain exceptions reserved in the original conveyance.

The material allegations of the bill were denied by the answer of the defendants.

The plaintiff introduced proof of the cutting of thirty-five trees on a strip of the said lands lying between a distance of twenty-five feet from the center of the railroad track and a distance of thirty-five feet from the center of the railroad track, cut in 1921 by the agent of the Mississippi Eastern Railway Company. He also introduced proof that the original right of way was only cut for a distance of twenty-four and one-half feet from the center of the railroad track on either side of the said railroad track.

The defendant introduced evidence showing that it originally cut a right of way one hundred feet wide, and that the right of way had been frequently cleared of underbrush during a period far longer than ten years; one of the witnesses for the defendant testifying that he was section foreman of the said Mississippi Eastern Railway Company for thirteen years prior to the bringing of the suit, and that he had annually cut out the right of way for a distance of thirty-five feet from the center of the railroad track on either side of the right of way. The defendant also introduced evidence that in a conversation with the appellant, its manager stated to him that the company owned a right of way one hundred feet wide, and that the plaintiff demanded that he produce written evidence thereof. It does not clearly appear whether this conversation occurred at the time of the purchase by the plaintiff or at the time the plaintiff was proceeding to clear out the right of way in which the timber involved in this suit was cut. It appeared for the plaintiff that he procured an abstract of his title at the time of his purchase. Plaintiff established by other witnesses the number of trees cut and their dimensions, and that they were within the ten feet, represented by the strip between the distance between twenty-five feet from the center of the railroad and thirty-five feet from the center of the railroad.

The chancellor on the hearing, dismissed the bill and declined to award the plaintiff any relief.

It is the contention of the complainant that the description of the right of way is void, and that the railroad company has only such part thereof as was covered by its tracks, or that part which it actually occupied and used during its operation, and that at all events he should have been awarded damages for the trees cut by the railroad company and described in the declaration.

The plaintiff’s chain of title disclosed the granting of the right of way, and the actual situation was that a railroad line was contracted across the line and was in operation at the time of the purchase by Gu'thrie, his predecessor in title, and was also being operated at the time the complainant made his purchase from Eouse. This deed, constituting a part of his chain of title, recited the reservation of the right of way, so the right of way was not conveyed by the Farmers’ Loan & Trust Company, or the Mobile & Ohio Eailroad Company, or the Alabama Land & Improvement Company. Consequently the title to the right of way, whatever it was, did not pass te Guthrie, and, as Guthrie had nothing to convey, the title did not become vested in Scott, and before Scott could claim title under his deed, or under that of Rouse, there must have been an acquirement of the right of way by adverse possession on the part of Rouse or of Scott, or of both taken together. There is no proof that either Scott or Rouse ever excluded the railroad company from the lands here involved, and the testimony of the railroad company is positive and direct that it claimed a right of way one hundred feet wide, and that they cut the right of way originally that width, but that subsequently, to save costs, they only cut the right of way seventy feet wide; that is, to say thirty-five .feet each way from the center of the railroad track. If the right of way was originally cut one hundred feet wide, and subsequently kept cleared for a width of seventy feet, both Rouse and Scott must have known of it, or be charged with notice thereof, because a mere physical inspection would have disclosed this fact.

In A. & V. Ry. Co. v. Joseph, 125 Miss. 454, 87 So. 421, we held that the running of trains over the right of way is a user of its entire right of way, unless some part is inclosed by the adverse claimant and used adversely for the statutory period, and cited Paxton v. Y. & M. V. R. R. Co., 76 Miss. 536, 24 So. 536, to the effect that:

“The railroad company does not lose its title to the right of way by mere nonuser, and the running of the 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.”

We also cited Wilmot v. Y. & M. V. R. R. Co., 76 Miss. 374, 24 So. 701, where the 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. ’ ’

From the proof in the record the chancellor was warranted in reaching the conclusion that the railroad company cleared the right of way for one hundred feet originally, and thereafter .occupied it adversely to the owner, certainly to the extent of thirty-five feet from the center of the track on either side, for the proscriptive period of more than ten years prior to the bringing of the suit. Consequently we must affirm the chancellor’s finding.

Affirmed.