Currie v. Natchez, Jackson & Columbus Railroad

Chalmers, J., delivered the opinion of the court. Miss Currie, according to the proof, undoubtedly by parol directed the engineer of the railroad company not to intrude upon her land. Notwithstanding her injunction, her lot was invaded and the excavation of it made. Afterward the road entered upon the excavation, built its superstructure, and used the roadbed. Whether she assented to such entry and use is doubtful, she denying it and others asserting that she did. When she sued for damages both for the excavation and the subsequent entry, the court below held that she could obtain damages only for the excavations, to which she had not assented, and not for the subsequent entry. This was virtually assuming the disputed question of fact against her; but she has not appealed. The railroad company was really aggrieved. Two witnesses, [730] Dudley and Wardlaw, swore that Miss Currie verbally agreed to dedicate the right of way over the land in controversy, and that she did promise verbally to sign a writing to this effect whenever requested. This upon motion was excluded, because they stated that there was no consideration for said promise, except that the company would locate their depot at a particular place named in said town. They also stated that she “ relinquished all claim for damages.” The court then refused to instruct the jury that all this constituted any defense to an action for trespass. This was erroneous. It- was held in N. O. & J. R. R. Co. v. Moye, 39 Miss. 374, that he who admitted a railroad upon his land by parol might revoke his license whenever he pleased provided the company had not so acted upon it that such revocation would operate as a fraud, and that such parol license would serve where the company had acted upon it to defeat an action of trespass, if essential to the right of the parties. If the jury believe the witnesses, and thought that Miss Currie with full knowledge of all the facts relinquished all claims for damages, this operated as a full defense to any action of trespass, and her disclaimer, being, as testified, for all damages, applied as well to the excavation as to the damages for building upon and entry on the lot. The question, therefore, should have been submitted to a jury. If they should think that she disclaimed, as to nothing whatever, she lost nothing. If she disclaimed only as to the subsequent entry and use, she could still recover as to the excavation, which in such case was not embraced in the disclaimer. If she disclaimed as to all damages (as the witnesses seem to us to indicate), then she could recover as to nothing whatever. The burden of proving the disclaimer and its extent is upon those who assert it. The fifth and sixth instructions asked by defendants were properly refused. A grant for a railroad is not a grant for public but for private use. The seventh instruction asked for defendants was inaccurate. If Miss Currie had previously forbidden defendants to enter upon her land, as testified by her, they could not by acquiescence obtain [731] the right to do so. The eighth instruction asked was correct and should have been given. We cannot say that any injustice was done defendants by the leave to amend granted. The verdict as found was still less than the amount laid in the declaration. With regard to the change of location in the depot, we would remark that the railroad authorities have unlimited power to fix them for the best interests of the enterprise, even though a money consideration be received therefor, but they cannot make a matter of commerce of them as a punishment to a non-sub«cribing town, nor establish them for any other purpose than the best interests of the community and of the road. For error in excluding testimony and not granting the eighth instruction asked by defendant, The judgment is reversed and new trial awarded.