Hooper v. Columbus & Western Railway Co.

SOMERVILLE, J. It is not controverted that the plaintiffs in the present action, which is one of ejectment under the statute, have the legal title to the land sued for, and that the [216] title of the defendant — the Columbus & Western Railway Co. — is merely equitable. This was settled in Hooper v. Savannah & Memphis R. R. Co., 69 Ala. 520, which involved the construction of the identical contract. Nor is it denied that the settled rule in this State, in ordinary cases, is, that in actions of ejectment the legal title must always prevail, and that a court of law can take no cognizance of a mere equitable title. It has been uniformly held by this court, that “ a court of law will not look to, or consider the equity of a party, in opposition of the legal title of the other,” and that a court of equity was the only proper forum in which the purchaser of an equitable title could protect himself by invoking the doctrine of equitable estoppel. — McPherson v. Walters, 16 Ala. 714; Smith v. Mundy, 18 Ala. 182; Kelly v. Hendricks, 57 Ala. 193; Lehman v. Bryan, 67 Ala. 558; Tutwiler v. Munford, 73 Ala. 308. The only question then is, whether there are any circumstances under which the courts can except railroad companies from the operation of this rule, by reason of the interest which the public has in them, or on any principle of public policy originating in the peculiar nature and use of such public highways. Whore the plaintiff has the legal title to a strip' of land, through which he has permitted a railroad company to construct its line of road for many miles, can the company, when sued in ejectment at law, preclude the plaintiff from a recovery on the ground of estoppel? Will ejectment, in other words, lie for the fractional part of the road-bed of an extended line of railroad, over and through which the defendant is exercising the right of way, having constructed the road-bed and other improvements thereon by the consent of the plaintiff ? There are cases which support the view, contended for by appellee’s counsel, that an equitable title can be set up by estoppel at law in cases of this character, where the plaintiff, having knowledge of the fact that a company is proceeding to construct a line of railroad over his land, allows them to expend large sums of money in such an improvement, without objection. Wo admit there is much force in the reasoning upon which these cases are based, and a dictum occurs in the case of New Orleans & Selma R. R. Co. v. Jones, 68 Ala. 48, where some countenance was given by us, a/rguendo, to this doctrine. So, in Pollard v. Maddox, 28 Ala. 321, where the •plaintiff’s deed to a railroad company failed to convey the legal title to land, it was so far construed to operate as a covenant granting^ the right of way, as to bar the plaintiff by estoppel from claiming damages in an action of trespass at law. We have re-examined the authorities on this question, with some doubts as to which is the sounder and better rule in such [217] cases. — McAuley v. Western Vt. R. R. Co., 33 Vt. 311; Provolt v. Chicago Railroad Co., 57 Mo. 256; Evans v. Missouri Railway Co., 64 Mo. 453; Trenton Co. v. Chambers, 9 N. J. (Eq.) 471; Goodin v. Cincinnati Canal Co., 18 Ohio St. 169 ; Mills on Eminent Domain, § 140-41. We have reached the conclusion, that the courts can make no exception, based on sound and just principles, which would exclude .railroad companies from the operation of the general rule, that in actions of ejectment at law the legal title must prevail. Where property is acquired by the exercise of the right of eminent domain, whether by railroad companies, or for other public use, the constitution requires that “ just compensation shall, in all cases, be first made to the owner.” — Const. 1875, Art. 1, § 24. Pre-payment of price to the owner of lands, sought to be condemned, is thus made a condition precedent, without which the title is not divested, or affected in any, manner. — New Orleans Railroad Co. v. Jones, 68 Ala. 48; Mills on Em. Domain, § 130. The policy of our law, therefore, is to protect the property rights of the citizen, just as effectually against seizure without compensation for public, as for private uses. Smith v. Chicago & St. Louis Railroad Co., 67 Ill. 191. It is in recognition of this principle that an action of ejectment has been sustained in favor of a private citizen, against agents and officers of the General Government, for lands held by them in the name and for the use of the Government.— United States v. Lee, 106 U. S. 196. While it is permitted to the Government, by reason of its sovereignty, to enjoy the immunity of refusing to be sued in its own courts without its consent, all other persons, private and corporate, must stand upon a basis of equality before the law, in the enforcement and defense of their legal rights in courts of justice in this State, at, least so far as is practicable. — South & North Ala. R. R. Co. v. Morris, 65 Ala. 193; Home detection of North Ala. v. Richards & Sons, 74 Ala. 456; Smith v. Chicago Railroad Co., 67 Ill. 191, 195. In the present case, the plaintiffs have by contract retained the title of the property for their own security, as they had the lawful right to do. If an individual were the defendant in an ordinary case, the law would hold that the plaintiffs could recover upon the strength of their legal title. So likewise, as we have seen, were the defendant an officer or agent of the General Government, holding the property in the name of the sovereign for public uses; this does not preclude the legal title from prevailing, according to the better opinion. It is difficult to perceive that the public can claim an estoppel upon any other principles than au individual, for the public is but an aggregate of individuals. Its rights, therefore, where the sover [218] eignty is not concerned, is but the summation of the rights of a multitude of single persons. As said by a learned English judge, in a case where it was urged that a vendor’s lien could not be enforced against land taken by a railroad 'company, “the public can have no rights springing from injustice to others.” Walker v. W. H. & B. Railway, 12 Jur. N. S. 18. We can not see, moreover, that the public would be any more inconvenienced by the action of ejectment in this case at law, than they would by the enforcement of the vendor’s lien by a court of chancery, which would result in a sale of the land by order of that court, and, in the event of its purchase by the plaintiff or any other vendee, in the placing of such purchaser in the actual possession.' — 2 Story’s Eq. Jur. (12th Ed.), § 12315. It would be no hardship on the defendant to compel a resort to a court of equity in this case, where a bill could be maintained, if at all, only by tendering payment of the balance due by them to the plaintiffs for the land, and which they had failed to pay. — Trenton Co. v. Chambers, 9 N. J. (Eq.) 471; Goodin v. Cincinnati Canal Co., 18 Ohio St. 169 ; Evans v. Missouri Railway Co., 64 Mo. 453. The judgment is reversed, and the cause remanded.