Wilmot v. Yazoo & Mississippi Valley Railroad

Terral, J., delivered the opinion of the court. This is a contest between the railroad company and the owner of an adjacent farm as to their respective rights in the right of way of the defendant’s road. The appellant claims the right to cultivate the right of way so far as it is not in the actual occupation of the company, and the company denies such right. The deed granting the right of way was executed in April, 1883, by Wingfield, the then owner of the farm, the defendant’s assignor, and Wingfield, for a valuable consideration, granted, bargained and sold a right of way over his land ‘‘ to have and to hold, to said assignor and the assigns forever, for the purpose hereinafter specified, and for none other—that is to say, for the purpose of building, constructing and operating a line of railroad on said right of way. ’ ’ [385] According to the principles of the common law, the deed of Wingfield, by implication, reserves to” the grantor all uses of the land through which the right of way is granted, not inconsistent with the purposes of the grant, and should the right of way be abandoned or lost the unincumbered fee would revert to the grantor or his assigns. The duties imposed by law upon a railroad company of safely carrying persons and property and of protecting employes and other persons lawfully upon the right of way from dangers arising from any obstruction or hindrance of the servants of the company in the performance of their duties, and the responsibility laid upon the company for the performance of such duties, require the right and power in the officers of the company of excluding at their pleasure all persons from the right of way. The occupancy of the right of way by the railroad company is practically exclusive, and the owner of the servient estate could cultivate it only by the consent of the railroad company. Railroad Co. v. Comstock, 60 Conn., 210; Hazen v. Railway Co., 2 Gray (Mass.), 580; Brainerd v. Clapp, 10 Cushing (Mass.), 12; Hollingsworth v. Railway Co., 63 Iowa, 444; Railway Co. v. Potter, 42 Vt., 275; Randolph on Em. Dom., sec. 215; Elliott on Roads and Streets, sec. 948. The demurrer of the plaintiff to the defendant’s special plea setting up its easement was properly overruled. The action being trespass, and the easement being specially pleaded, the replication of the plaintiff that the defendant had lost the easement by nonuser, and that the plaintiff had acquired it by ten years’ adverse possession under claim and color of right, was a proper pleading, and presented a good answer to the special plea. Had the replication been ill at common law, it was not subject to a demurrer under the provisions of § 703, annotated code 1892. As land may be acquired by adverse possession for ten years, it looks to us to be consistent with the principles of law that such possession would extinguish any servitude in the land so held. [386] Snch occupancy by the owner of the fee must be strictly exclusive, and under distinct color of right, in order to bar the entry of the railroad company. It should distinctly appear that the owner of the fee is not attempting to exercise his use of the land in harmony with the right of the railroad company, but his occupancy must be distinctly hostile to that of the company. If the owner of the servient estate should cultivate any part of the right of way, under the notion that he was only enjoying a legal right not inconsistent with the use of the way by the company, such cultivation, however long continued, could not ripen into a title to the right of way, or to the part so cultivated; but if he should fence a part of the right of way against the company itself, and claim, to the knowledge of the company, a right to use it as his own, discharged of servitude of the company, or under circumstances that necessarily gave the company notice of such claim, and should continue such possession for ten years, the company would be debarred of all right. R. R. Co. v. Houghton, 1 L. R. A., and notes; Horner v. Stilwell, N. J. L., 307; Ward v. Ward, 7 Exch., 837; Wash, on Easements, *p. 551; Curran v. City of Louisville, 83 Ky., 632; Kuecker v. Voltz, 110 Ill., 264; Day v. Walden, 46 Mich., 575; Snell v. Levitt, 39 Hun, 229; Smyles v. Hastings, 22 N. Y., 224. The demurrer to the replication should have been overruled. The four replications offered to be filed by the plaintiff were properly rejected by the court. Under § 692, annotated code, more replications than one can be filed only when verified by oath, and these were not verified. The third replication was the first repeated; the others would have raised immaterial issues. Hartford v. Green, 52 Miss., 338. Reversed and remanded.