Boulo v. New Orleans, Mobile & Texas Railroad

BRICKELL, C. J. — The complainants, averring ownership and possession of a lot on the east side of Commerce street in the city of Mobile, filed this bill, to enjoin the defendant from entering on, and taking possession thereof, for the uses of its road. The defendant avers, that the complainants had neither title to, nor possession of the place in controversy-— that it is part of the shore of Mobile river, and that the right and authority to enter and construct its road thereon is conferred by its act of incorporation. The jurisdiction of a court of equity to enjoin the commission of trespasses on real estate, though of comparatively recent origin, is now firmly established. The court does not interfere, merely because the party of whom complaint is made is a trespasser. The interference is for the protection of the right, legal or equitable, of the invasion of which the party appealing to the court can rightfully complain. Yery much the same rule obtains, as in ejectment at common law: the plaintiff must recover on the strength of his own title, not because of the weakness of the defendant’s. An injunction should never be issued, unless the right is clear, and the injury not capable of prevention otherwise. Privity of estate, or of contract, not appearing between the parties, or the complainant not showing a clear legal or equitable title, the court will not intervene by injunction, to prevent a trespass. — Kerr on Injunction, 295; Duvall v. Waters, 1 Bland, 277; Storm, v. Mann, 4 Johns. Ch. 21; Irwin v. Dixon, 9 How. 28; Eichelkamp v. Schnader, 45 Mo. 505; Routh v. Driscoll, 20 Conn. 579; Falls River, &c. v. Tibbetts, 31 Conn. 569. In a case analogous to the present, an application for an injunction to stay waste, said Lord EldoN : “ I dare not grant an injunction in this case. The bill states a title sufficiently, if it was sufficiently verified. But the affidavits disclose the case no further, than that it may or may not be true; and I am of the opinion the court ought not to grant an injunction, unless there be positive evidence of title.” — Davis v. Leo, 6 Vesey, 784. In the state of the pleadings — the answer explicitly denying the title and the possession of the appellants — the first inquiry is into the title and fact of possession. No privity of estate, or of contract, between the parties, is averred, The — 489 — whole theory of the bill is, that the defendant, having power to take and appropriate lands in the construction of its railroad, has entered on, and is appropriating the complainants’ land, without making compensation, and disclaiming all duty or liability to make it. The title of the complainants is founded on documentary evidence, and an averred long, continuous, uninterrupted possession. The place in controversy is a slip between two wharves, the one on tho north known as ‘Church street wharf,’ the one on the south as ‘Hogan’s wharf;’ its western boundary is Commerce street, from which it is separated by a bulk-head, or barrier; and on the east it extends into the Mobile river. Whether the whole slip is not, at high tide, covered by the water of the river, is a fact about which the evidence conflicts. We incline to the opinion that, immediately at the barrier, or bulkhead, land has been formed, which is not usually covered by water at high tide. Originally, Commerce street, at this place, was covered by high tides, if not at all times; and the water extended to, if not beyond, the storehouse of the complainants, on the western side of the street. The municipal authorities of the city of Mobile gradually reclaimed the land now forming the street; and the labor of proprietors, asserting riparian rights, and exercising them in the construction of wharves into the river, on the east of the street, contributed. The documentary evidence of title, introduced by the parties, may be thus stated. On the 20th April, 1818, an act of congress was approved, directing the survey and sale of Fort Charlotte, which stood to the south of Government street, in the then town of Mobile. The act required the land to be laid off into lots, with suitable streets and avenues. The survey was made, and nine blocks, or squares of lots, with intervening streets, or avenues, were laid off. The lots were numbered, and a sale of them by number was made. James Wilson became the purchaser of lot number three, in square number two; and in 1823, having made payment of the purchase-money, received from the United States a patent, in which it is described as follows: “ Lot number three, in square number two, being thirty feet front, situate on the ancient site of Fort Charlotte, in the town of Mobile and State of Alabama, according to the official plat of the survey of said lands, returned to the general land-office, by the surveyor-general.” A copy of this plat, properly certified, is exhibited with the answer; and thereby it appears, that, though squares one, two, and three, of the Fort Charlotte lots, fronted on Mobile river, a space of land intervened between the squares and the river, and no lot extended to the river. — 490 — In 1831, the corporate authorities of the city of Mobile were, by the general assembly, empowered to require the owners of vacant lots within the city “lo cleanse and dear’'’ them; and if the owner could not be found, to cleanse and clear them, and lease them for such term as would pay the expense of the improvement.- — Pamph. Acts 1830-1, p. 54. The authorities, under this statute, declared the lot of Wilson a nuisance, and caused it to be filled with earth, &c., and then leased it, to pay the expense incurred, for a term of seventy-five years, to Robert E. Centre. In the lease, the lot is described as “ bounded on the east by the Mobile river, on the north by Church street, on the west by Water street, and on the south by Hogan’s lot; and having a front on the said river of about thirty feet, a front on Church street of about two hundred and twenty feet, and a front on Water street of about thirty feet, more or less.” This is a very inaccurate description of the lot, corresponding with its true description, at the time of the sale by the United States, in the western and southern boundary only. It seems to be conceded, that subsequent to Wilson’s purchase, and prior to the lease, Church street was changed, so as to embrace lots one and two, of square number two, of the Port Charlotte plat, thus becoming the northern boundary of Wilson’s lot, number three. Lot number four of the same square, south of Wilson’s lot, was patented to John B. Hogan and others, and seems thereafter to have been known as the “Hogan lot,” as it is styled in the lease. Water street was the western boundary of square number two, and the space of land intervening between it and the river, marked on the plat, was the eastern boundary. Making the boundary on the east Mobile river, as is done by the lease, instead of this space of land, it is probable, was under the supposition, that the city of Mobile had title, under the act of congress of 1824, between high-water mark and the channel of the river. If such was the supposition, it was erroneous; and the lease, if valid (a question on which it is not necessary to express an opinion), operated only the creation of a term in the Wilson lot. That lot only the corporate authorities had power to lease. Its boundaries could not be enlarged, and the lessee could only take so far as the United States had patented to Wilson. The lot remained vacant, after the lease, until 1840, when the heirs of Centre conveyed the remainder of the term to James Magee. In this, and all subsequent conveyances, the description of the premises is as two lots; the one “ on the west side of Commerce street, beginning at the south-west corner, or intersection of Commerce and Church streets, and — 491 — running northwardly along Commerce street, thirty-two feet; thence westwardly, and parallel with Church street, one hundred and seventeen feet; thence northwardly, and parallel with Commerce.street, to Church street; thence westwardly, along Church street, to the beginning; also, another lot of land, situate, lying and being on the south side of Church street, and east side of Commerce street, beginning at the southern intersection of Church and Commerce streets, and running southwardly, along Commerce street, thirty-two feet; thence eastwardly, and parallel to Church street, to the river; thence westwardly, running northwardly along said river, till it intersects the southern boundary of Church street; thence westwardly, and along Church street, to the beginning.” Magee erected on the lot, on the west side of Commerce street, a brick storehouse, and then conveyed to Joseph Hall, in trust for the use of his wife Henrietta, and his daughter, Florence Emily Magee. Hall and Mrs. Magee having died, and Florence Emily being of full age, in 1859, she reconveyed to her father, said J ames. In 1869, he sold and conveyed to the complainants. As we .have said, originally the water of the river covered Commerce street, and that street was reclaimed by the municipal authorities. The Wilson lot not extending to the river, but separated from it by a strip or space of land, did not embrace the place in controversy. The patent to Wilson is the source of complainants’ title ; and of consequence, they have, so far as is shown in the record, no documentary evidence of title — no grant, or conveyance, sufficient to pass this slip. Though it is described in the conveyance from the Centres to Magee, and from Magee to the complainants, title did not pass, because it did not reside in the several grantors, or any of them. This seems to be conceded by the complainants ; but it is insisted that they, and those under whom they claim, for more than twenty years, have been in the undisturbed and undisputed possession of the place, under a claim of right. If the fact exist, it is right and just they should be protected in the possession.— Varick v. Corporation of N. Y, 4 John. Ch. 53. The presumptions of the law are in favor of the legality of men’s acts ; and therefore it attributes a lawful origin to long-continued irse and enjoyment. — 3 Stark. Ev. 1203. After a careful and deliberate examination of the evidence, we are not satisfied that the complainants, or those under whom they claim, have ever had any exclusive possession of the slip, or subjected it to individual use. No occupant or proprietor of the lot on the west side of Commerce street, prior to the appellants, is shown to have made any use of — 492 — it. The only use of which it has been capable, since the construction of the wharves, has been a mooring or landing place for smaller vessels. That is the only use the complainants are shown to have made of it during the short time of their ownership and occupancy of the lot on the west side of Commerce street. But the public at large, all navigating the river, made the saíne use of it; and to such public use it has been appropriated, since the wharves were constructed. When, or by whom, the bulkhead, or barrier which separates it from Commerce street, was erected, is not shown. It was essential to the preservation of this slip, as a suitable landing place for vessels, and when it would fall into disrepair, it was repaired by the proprietor of the wharves. In 1852, a storm injured, if it did not destroy the bulkhead, and it was rebuilt by Gage, the lessee of the wharves. In 1865, it was repaired, and placed by Gage and Hurtel, then lessees of the wharves, in the condition in which it was when the complainants purchased. If the slip was ever subjected' to individual use, it was by the lessees or proprietors of the wharves, as an accessory to them; and there is no privity of title between them and the complainants. The land which accumulated at the bulkhead was used by the lessees of the wharves — they gave permission for its occupancy; and when not occupied under their permission, by the cargo or freight they permitted to be discharged there, so far as it was on a level with the street, those traversing the street used it as a part of the street. No dockage, no rent for the use of the slip, was ever claimed by the complainants, or those whom they succeed in estate. Not an act of ownership was ever exercised over it. Its existence, and the public use of it, probably gave additional value to the storehouse and lot of appellants on the west side of Commerce street, and the adjacent lots of other proprietors. Trade may have been drawn to that side of the street, by the existing condition of things. Water transportation may have been, and doubtless was, the chief sourcé of the commerce of Mobile. Individuals purchased property, with the view of its present location to existing sources of commerce. These change, and will change, in the course of time, and those who suffer loss from the changes have no claim to compensation, beyond that which may be received in the diminution of public burthens on them, 'which are elsewhere increased, because of the increase of values, and the transfer of these sources. The several conveyances after the lease certainly disclose a claim of right to the place in controversy. A mere claim will not avail, as the foundation of a presumption of title. Concurring with it, there must be an open, notorious pos — 493 — session, challenging tbe right of all who could claim adversely. The title to the locus in quo, which is part of the shore of a tide-water stream, resides in the State. Its use for the purposes of commerce, by the public, is not only permissible, but is the trust annexed to the title. Such use is consistent with, and not in opposition, or hostility to the title.' Presumptions of grant, or of a license, when an exclusive, continuous appropriation to private use has existed for twenty years,, may be indulged. But an exclusive, hostile possession, illegal without license or grant, is essential to create the presumption. . We cannot affirm that the defendant had entered on and taken, or was about entering on and taking, land which was the property of complainants. That affirmation not being clear from the evidence, the decree of the chancellor, refusing an injunction, and dismissing the bill, was correct, and must be affirmed.