Cowan v. Southern Railway Co.

HARALSON, J. 1. It has been definitely settled in this State, that under our constitution and laws, a right of way over the homestead granted and conveyed by the husband in an instrument in writing, duly executed by him, but in which the wife diet not join, is void and has no operation as an estoppel or otherwise against the husband.- — McGhee v. Wilson, 111 Ala. 615, and authorities there cited; Alford v. Lehman, 76 Ala. 526; Marks v. Wilson, 115 Ala. 561. The deed of W. R. Cowan, executed by him alone, on the 12th August, 1886, in his lifetime, to the Rome & Decatur Railroad Company, of a right of way across lands which then constituted his homestead, in which his wife did not join, was, therefore, a nullity, and, as for any title it conveyed to the railroad company, the lands remained his own, as though said deed had never been executed. 2. The bill shows, clearly enough, however, that said railroad company, in entering upon said lands to build and operate its road, did so not as a trespasser, but with the knowledge and consent of the owner of the land. The road was built in the year 1886, by said company, soon after the execution of said deed, and has since been in its possession and operated by it, and the two successor railroad companies, for a period of about nine years, before this bill was filed, without interference from, or protest by the owner of the land. The fact that the bill alleges as a conclusion, that the railroad company took forcible possession of said right of way, is of no significance, since the facts under which it took possession are fully averred and show that it entered on and took possession of the same by consent of the owner, W. N. Cowan. Again, it is well settled, that when the owner of land has knowledge of the fact, that a railroad is proceeding to locate and construct its road on his lands, and he allows it to expend large sumfe of money for this purpose without interfering with or forbidding it to proceed, he is estopped from evicting it by ejectment. In such case, there only remains to him. a right of compensation. — S. [561] & N. A. R. R. Co. v. A. G. S. R. R. Co., 102 Ala. 236; A. G. S. R. R. Co. v. S. & N. A. R. R. Co., 84 Ala. 580; N. O. & S. R. R. Co. v. Jones, 68 Ala. 49; Pollard v. Maddox, 28 Ala. 321, and authorities referred to in these cases. See also Rapalje & Mack’s Dig. of Railway Law, pp. 874-5, §§1073, 1074, and cases there cited; 6 Am. & Eng. Encyc. of Law, 593-4, n. 1. 3. The original bill filed by W. N. Cowan, the owner of the land, is one, as -was properly held by the chancellor, not in the nature of a suit in ejectment, nor an action of trespass for damages, but one solely for compensation for the taking and using the land of .complainant as a right of ivay by the. railroad, not having made compensation therefor, without having 'condemned the 'same under ad quod damnum proceedings for such purpose. It cannot be contended, that by permitting the railroad company to construct its road and operate it without interference, the owner estopped himself from afterwards asserting his right to compensation for the right of way. As touching such a contention and as; applicable to this case, we may appropriately apply what was said by this court upon the same question in Thornton v. Sheffield & B. R. R. Co., 84 Ala. 114, where Stone, C. J., employed this language: “There is no principle of estoppel against this claim, considered as a mere demand for damages for the right of way. If she .[the complainant] were seeking to evict the corporation, there might be something in the objection. .Thai is not the purpose of this suit. She claims only for the injury done to the freehold; and that claim, under the averments of the bill, stands on the same meritorious ground as if the railroad had been built, without prior attempt to procure, or condemn the right of way. Such acquiescence, to operate a bar, must be of sufficient duration to toll the entry. — N. O. & Selma R. R. Co., v. Jones, 68 Ala. 48; Jones v. N. O. & Selma R. R. Co., 70 Ala. 227; Tenn. &c. R. R. Co. v. E. Ala. R. Co., 73 Ala. 426; 1 Wood’s Railway Law, §209; Perkins v. Me. Cent. R. R. Co., 72 Me. 95. The course adopted by the complainant in this case, is fully justified by the authorities, and the bill should be retained and made effective by injunction if necessary, until the damages are properly ascertained, or until t'he railroad company obtains the right of way in legal form. — Taylor v. C. R. & St. P. R. R. Co., [562] 25 Iowa, 371; Browning v. Cam. & W. R. R. Co., 4 N. J. Eq. 47; Gilman v. S. & F. R. R. Co., 40 Wis. 653; Rusch v. M. L. S. & W. R. Co., 54 Wis. 136; 2 Wood’s Railway Law, §246.” — McGhee v. Wilson, 111 Ala. 615. The just compensation to which the owner is entitled, is defined and fully stated, after careful consideration, in the case of Jones v. N. O. & S. R. R. Co., 70 Ala. 227. 4. During the life of the husband, the title to the homestead is . in the husband,' and not in his wife. While it cannot be aliened by him without her voluntary signature and consent, that fact vests no legal or equitable title in her so long as her husband lives. During his life the wife may exercise a veto upon his right of aliention, and may enjoy the privilege of co-occupation by his permission, but she possesses no property in the premises. Her right accrues only at the date of the husband’s death, and she takes it in its then condition, and burdened as it may be at that time. — Seaman v. Nolen, 68 Ala. 463; Vancleave v. Wilson, 73 Ala. 387; Grider v. A. F. L. M. Co., 99 Ala. 281. It follows, the wife was not a necessary or even a proper party to the proceeding. The recovery, whatever it may be, will be assets of the estate of the husband, to be disposed of in due course of administration. It was proper, therefore, to revive the suit, on the suggestion of the death of the husband, in the name of his administrators, but there was a misjoinder, as was held by the court below, in the bill of revivor, in making the widow of the decéased and his heirs parties complainant. Authorities supra. 5. The fact that the selected homestead was from a body of land larger than the homestead selected, and that the same was set apart after the owner, W. N. Cowan, executed his void deed to the railroad, was without force- as a ground of demurrer to the’ bill. — De Graffenried v. Clark, 75 Ala. 425; Goodloe v. Dean, 81 Ala. 479; Marks v. Wilson, 115 Ala. 561. If the bill does not show for what part of the compensation claimed, the' defendant is liable, as objected on demurrer, it does show, that the defendant company had succeeded to the rights of the company which built the railroad, is now in possession of said right of way, and is. operating' the road. This is sufficient to sustain [563] the suit against the defendant, which, as successor to the Borne & Decatur Bailroad Company, is liable to pay just compensation for appropriating to its uses a part of the homestead. — Lewis on Em. Domain, §618; R. G. & E. P. R. Co. v. Ortiz, 75 Texas, 602;s. c. 1 Am. R. R. & Corp. Cas. 344, and cases there cited. From the foregoing it will appear wherein the rulings of the court on demurrer were erroneous. Beversed and remanded.