Rouse v. Martin.

Great caution

Every doubt

this difficulty is greatly increased by the novelty of this case. should be used in dealing with a matter so delicate and difficult. should be solved against the restraint of a proprietor in the use of his own property for a purpose seemingly lawful, and conducive both to individual gain and the general welfare. Relief by injunction is so severe in its consequences that it is not to be granted in such a case, except when the right to it is clearly and conclusively made out. To interfere with one's right to use his own land for the production of what he pleases, in a case of doubt, would be a flagrant abuse of power. It is not enough to show probable or contingent injury, but it must be shown to be inevitable and undoubted. Wood Nuis., $6; Green v. Lake, 54 Miss. 540; s. c., 28 Am. Rep. 378.

"The voluminous testimony of the many witnesses in this case is quite variant. It is clearly shown that the Johnson grass is very valuable. It makes excellent hay, in large quantity per acre, yielding as much as six tons a year on good land, and seems suited to supply a long felt want of the South. Statements and opinions differ widely as to the spreading of the grass, and its destructibility, and its destructiveness of other crops. According to some of the witnesses, it is an unmitigated curse, threatening ruin to the land as to all else, obtruding itself persistently where it is not wanted, carried far and wide by wind and water and birds and animals, and sending forth its pernicious roots full of joints close together, and each possessing the germ of a new growth to form the fruitful cause of further propagation by seeds and roots in all the adjacent land, bidding defiance to all efforts to stay its dreaded march of destruction, and soon taking exclusive occupancy of whole plantations, which are thenceforth rendered unfit for any thing else. According to others, it is not disposed to spread rapidly, and is hard to propagate, even with diligent effort, and is not destructive of other crops, and may be readily destroyed by the means used to destroy other grass. It is said to have been brought from Guinea, on the western coast of Africa, to Jamaica, whence it was taken to South Carolina, from which some of its roots were brought more than forty years ago to Alabama by Mr. Johnson, from whom it has its present name. We have before us the testimony of many witnesses acquainted with it on the Johnson farm in Alabama, and they differ about it, as do witnesses who have known it elsewhere.

'We are embarrassed by the contrariety of statements and opinions, and the uncertainty thus created. If we maintain the injunction wrongfully, great harm may be thereby done to the appellant and the country. If future developments shall place it beyond doubt that the grass is an evil to be prevented and extirpated, a remedy may perhaps be found. As at present advised, we regard the result of sowing the grass seed too doubtful, uncertain and contingent to justify the continuance of the injunction. The history and habits of the grass are too little known and established to authorize its condemnation as a nuisance, which is necessary to sustain this bill. The grass may be neither an unmixed evil nor good. Time and trial will disclose its true character. If it be said it will be too late, after its introduction into the country, to stay the evil, if it shall prove to be such, the reply is that it is already in many places in Mississippi and Arkansas, and is in Washington county; and if its character

Tennessee and Coosa Railroad Company v. East Alabama Railway Company. is correctly portrayed by some of the witnesses, it must soon have the exclusive occupancy of the whole land, and the dissolution of this injunction will exert little influence on this inevitable result. We therefore reverse the decree of the chancellor, and dismiss the bill without prejudice to the rights of the complainants in any future controversy on this subject."

TENNESSEE AND COOSA RAILROAD COMPANY V. EAST ALABAMA RAILWAY COMPANY.

(75 Ala. 516.)

Ejectment-for railway.

Ejectment will lie for a railway by one having title only to the right of way. (See note, p. 478.)

E

JECTMENT. The opinion states the case.
had judgment below.

W. H. Denson and Savil F. Rice, for appellant.

The defendant

Barnes & Son, Semple & Son and Dunlap & Dortch, contra.

STONE, J. The present is an action of ejectment, brought by the appellant as plaintiff, and seeks to recover what is described in the complaint as "the following real estate, that is to say, the track or road-bed of the plaintiff as the same was located at and before July 12, 1871, from Gunter's landing, in Marshall county, in the State of Alabama, to Gadsden, in Etowah county, in said State, together with all their right of way, grading, trestles, masonry work, culverting work, and property on said line so located, including the railroad from Gadsden to Attala, in said county of Etowah, which railroad is the only railroad from Gadsden to Attala, and is attached to the soil, and is now, and was at the commencement of this suit, used and operated as a railroad by the employees of the defendant corporation, and by the direction and authority of that corporation, and including also the appurtenances of said railroad from Gadsden to Attala."

[Omitting other allegations and points.]

It is objected in the next place, that plaintiff has not sufficient property in the realty to maintain ejectment; that plaintiff has only

Tennessee and Coosa Railroad Company v. East Alabama Railway Company.

an easement, and no title to the soil; and that ejectment will not lie for the recovery of an easement.

It is true that ejectment will not lie, as a general rule, for an easement, or to be let into the use or occupation of a servitude. The reason is that the party complaining has only a right in common with the public, or with some other person or persons, to the use or occupation claimed. The right is a qualified, limited one, and in ordinary cases, is not disturbed by another's similar occupation. It is but a privilege to go on the lands of another for a specified, limited purpose, and has no element of exclusiveness in it. A right of way, or of common, may be given as illustrations of this principle. 3 Washb. Ease. (3d ed.), 260, 270; Child v. Chappell, 9 N. Y.246; Morgan v. Boyes, 65 Me. 124; Rees v. Lawless, 12 Am. Dec. 295. There are cases which go beyond this doctrine. Wood v. Truckee Turnpike Co., 24 Cal. 474; Union Canal Co. v. Young, 30 Am. Dec. 212; 2 Wait Act. and Def. 747; 2 Redf. Ry. 553.

Lands claimed and condemned as road-bed and right of way of a railroad stand in a different category from that of ordinary easements. Over them is acquired, not the right of use to be enjoyed in common with the public, or with other persons. The right and use are exclusive, and no one else has any right of way thereon. M. & O. R. Co. v. Williams, 53 Ala. 595; M. & M. Ry. Co. v. Blakely, 59 Ala. 471; Tanner v. L. & N. R. Co., 60 Ala. 621; S. & N. R. Co. v. Pilgreen, 62 Ala. 305; Cook v. Cent. R. Co. & Banking Co., 67 Ala. 533; R. & G. R. Co. v. Davis, 2 Dev. & Bat. (Law) 451; Jackson v. R. & B. R. Co., 25 Vt. 150; T. & B. R. Co. v. Potter, 42 Vt. 265.

Ejectment was originally classed as a possessory action. Hence it was that at common law any number of actions could be maintained, by laying the demise at a later date. One recovery was only conclusive as to one and the same demise. A right to the immediate possession, in form legal as distinguished from equitable, would always maintain the action, and it will yet. Prior possession is sufficient against any one afterward found in possession, unless the latter can show a paramount title, or a possession continuous, peaceable and adverse, of sufficient duration to toll entry. Tyler Eject. 70; Tyler Eject. 165; Anderson v. Melear, 56 Ala. 621. A lessee or termor, during the continuance of a valid lease, may maintain the action against the lessor, although the owner of the entire fee, less the term.

So the title of a railroad corporation to the possession

Tennessee and Coosa Railroad Company v. East Alabama Railway Company. of the soil covered by the road-bed and right of way, will after condemnation dominate all adverse claim of possession, even by the owner of the fee. "Although the right which a railroad company acquires to land taken under their charter is said to be merely an easement, yet the nature of their business, their obligations to the community and the public safety require that the possession of the land so taken should be absolute and exclusive against the adjacent land-owner, so far as to secure fully every purpose for which the railroad is made and used." Conn. & Pass. River R. Co. v. Holton, 32 Vt. 43. "One who has the exclusive right to mine coal upon a tract of land has the right of possession as against the owner of the soil, so far as it is necessary to carry on his mining operations." Turner v. Reynolds, 23 Penn. St. 199, 206. "The right of municipal corporations, or public authorities vested with no higher estate than a public easement, or right by dedication, to invoke the remedy of ejectment, for the possession of streets, public squares, town commons, church and market grounds, is upheld in many cases." Sedg. & Wait Trial of Title to Lands, § 271. See also Jackson v. May, 16 Johns. 184; Winona v. Huff, 11 Minn. 119; Cincinnati v. White, 6 Pet. 431; Dummer v. Jersey City, 40 Am. Dec. 213; Hoboken Land Co. v. Mayor, 36 N. J. Law, 540; Doe v. Booth, 2 Bos. & Pul. 219; 3 Wait Act. and Def. 6, 7. In the following cases will be found a curious discussion, tending strongly to show that the road-bed and superstructure - in fact, every thing attached to the soil on which a railroad is built are considered realty. Randall v. Elwell, 52 N. Y. 521; s. c., 11 Am. Rep. 747; Hoyle v. P. & M. R. Co., 54 N. Y. 314; s. c., 13 Am. Rep. 595. And there is certainly much reason for the opinion. The road-bed and right of way are as immovable as the soil itself, the superstructure is attached to the soil, and the corporation has the exclusive right to the possession of it. In Cent. Pacific R. Co. v. Benity, 5 Sawyer, 118, the precise question we are considering was presented, and the court, Circuit Justice SAWYER participating, decided the action of ejectment would lie. So we hold it will lie in this case.

[Other matters omitted.]

The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed.

BRICKELL, C. J., not sitting.

Tennessee and Coosa Railroad Company v. East Alabama Railway Company.

NOTE BY THE REPORTER.- In Hoboken Land and Improvement Co. v. Mayor, etc., 36 N. J. L. 540, it was held that ejectment will lie in favor of a city for lands dedicated for a street. The court said: "The action of ejectment is a possessory action. All that is involved in it is the right of possession, and the party, whether plaintiff or defendant, in whom is vested the right of possession, is entitled to succeed in the action, without regard to where the ultimate fee may be. On this principle, in Dummer v. Den, Spencer, 86, it was held that a municipal corporation might bring ejectment to recover a square situate within the corporate limits, which had been dedicated to that public use. In a later case, the plaintiffs in this action recovered in ejectment a public square in the city of Hoboken, which had been dedicated by the same instrument of dedication which is in controversy in this cause. Methodist Church v. City of Hoboken, 4 Vroom, 13. In the first of these cases the action was held to be appropriate on the ground that by force of an act of incorporation which gave to the municipal authorities the usual powers over streets, squares and public places, the rights of the public in common property became vested in the corporation. In the latter case, the broad doctrine was adopted that the right to maintain appropriate actions for the vindication of the public right in lands dedicated to a public use was lodged in the local public authorities. In neither of these cases had an ordinance appropriating the lands to the proposed public use, preceded the commencement of the action.

"Where the public easement is such that possession, exclusive of any interference by the owner of the fee, is essential for its improvement, regulation and enjoyment, the only appropriate action to obtain the possession is ejectment. To deny this form of relief and remit the public to a remedy by indictment for a nuisance, would result in subjecting public rights in property to the varying moods of grand juries.

"By the charter of the city, its municipal authorities are charged with duties in relation to opening streets and paving and putting them in condition for public use, and amending and repairing, which require a possession as exclusive as in cases of public squares. Whatever be the rule with respect to ordinary country highways, or as between the owner of the fee and a mere trespasser, it is entirely consistent with the principles on which the action of ejectment is founded, that ejectment should lie at the suit of a municipal cor. poration to recover lands over which a street in law exists."

But see Bay County v. Bradley, 39 Mich. 163; s. c.. 33 Am. Rep. 367.