McCLELLAN, J.
The testimony of the plaintiff Farrow, when being cross examined as a witness for the plaintiffs as to the extent to which the old road bed had been cleared prior to the cutting of the trees iuvolved here, was relevant on the inquiry of abandonment, especially as the clearing as to which he deposed extended back to and connected with that part of the road which had been completed many years before ; and the further fáct that he "knew they were clearing off the old right of way and had heard that the road was being constructed before the trees in question were cut” was, we think, proper to go to the jury on the inquiry of consent vel non on his part to the cutting, there being no direct evidence on that point.
The deed from Thomas Hale to the Tennessee & Coosa Railroad Company of a right of way over his land hav[453] ing been introduced without objection, we do not conceive any valid reason for rejecting the receipt of that company showing the payment of the purchase money recited in the deed. In this connection, it may be further said that whether this deed was efficacious as a conveyance or not, — a question to be considered further on,— t was admissible in evidence in connection with the showing made by defendant as to the possession of the right of way by itself and the Tennessee & Coosa R. R. Co. And, further, that its supposed'indefiniteness of description did not render it inadmissible. — Payne v. Crawford, 102 Ala, 387.
The plaintiffs showed title to the fee. It was upon the defendant to show title to the right of way. One link in its alleged title was a deed from the Tennessee & Coosa R. R. Co. This deed was in defendant’s possession. The *courb refused to require the production of the original, but admitted, against plaintiffs’ objection, a copy certified from the records of the probate court. By this copy it appears that the original deed had been in all respects so acknowledged and proved as to be entitled to registry in that office under section 1804 of the Code. This made the original deed self proving ;it could have been introduced in evidence without proof of its execution. But this is not to say that a certified transcript of the record of the deed was admissible. To the contrary, by the express terms of the statute, such transcript is competent only when it “appears to the court that the original conveyance has been lost or destroyed, or that the party of offering the transcript has not the custody and control thereof.” In this case it not only did not appear that the deed had been lost or destroyed, or was out of the control or custody of the defendant, but, to the contrary, it affirmatively appeared that it was at the time in the custody and control of the party offering the transcript. The trial court, therefore, erred in admitting said transcript. Code, § 1798; Huckabee v. Shepherd, 75 Ala. 342; Jones v. Hagler, 95 Ala. 529.
The testimony of Carlisle that there.was a continuous roadbed embracing that across the land here in controversy, and extending to Gadsden, was clearly competent on the questions of possession and abandonment by the Tennessee & Coosa Company and the defendant of the roadbed on this land.
[454] Rayburn was at one time the owner of this land, and through him the plaintiffs deraign their title. If, while he so owned it, he, as president of the railroad company, directed the location of the road upon it, the fact of such direction would be competent evidence for the defendant in this action, — assuming, of course, that the defendant has succeeded to the rights of the Tennesse & Coosa Co., — otherwise not. And, inasmuch as it was not made to appear that Rayburn owned this land when he had the road located upon it, this testimony should have been excluded.
Th„e several motions of plaintiffs to exclude certain of defendant’s answers to interrogatories propounded to it under the statute by the plaintiffs, the answers in question being responsive to the interrogatories, were each properly overruled. A party cannot thus speculate upon the testimony of his adversary which he has elicited and laid before the jury, even though the testimony, abstractly considered, may be inadmissible.
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McCLELLAN, J.
The testimony of the plaintiff Farrow, when being cross examined as a witness for the plaintiffs as to the extent to which the old road bed had been cleared prior to the cutting of the trees iuvolved here, was relevant on the inquiry of abandonment, especially as the clearing as to which he deposed extended back to and connected with that part of the road which had been completed many years before ; and the further fáct that he "knew they were clearing off the old right of way and had heard that the road was being constructed before the trees in question were cut” was, we think, proper to go to the jury on the inquiry of consent vel non on his part to the cutting, there being no direct evidence on that point.
The deed from Thomas Hale to the Tennessee & Coosa Railroad Company of a right of way over his land hav[453] ing been introduced without objection, we do not conceive any valid reason for rejecting the receipt of that company showing the payment of the purchase money recited in the deed. In this connection, it may be further said that whether this deed was efficacious as a conveyance or not, — a question to be considered further on,— t was admissible in evidence in connection with the showing made by defendant as to the possession of the right of way by itself and the Tennessee & Coosa R. R. Co. And, further, that its supposed'indefiniteness of description did not render it inadmissible. — Payne v. Crawford, 102 Ala, 387.
The plaintiffs showed title to the fee. It was upon the defendant to show title to the right of way. One link in its alleged title was a deed from the Tennessee & Coosa R. R. Co. This deed was in defendant’s possession. The *courb refused to require the production of the original, but admitted, against plaintiffs’ objection, a copy certified from the records of the probate court. By this copy it appears that the original deed had been in all respects so acknowledged and proved as to be entitled to registry in that office under section 1804 of the Code. This made the original deed self proving ;it could have been introduced in evidence without proof of its execution. But this is not to say that a certified transcript of the record of the deed was admissible. To the contrary, by the express terms of the statute, such transcript is competent only when it “appears to the court that the original conveyance has been lost or destroyed, or that the party of offering the transcript has not the custody and control thereof.” In this case it not only did not appear that the deed had been lost or destroyed, or was out of the control or custody of the defendant, but, to the contrary, it affirmatively appeared that it was at the time in the custody and control of the party offering the transcript. The trial court, therefore, erred in admitting said transcript. Code, § 1798; Huckabee v. Shepherd, 75 Ala. 342; Jones v. Hagler, 95 Ala. 529.
The testimony of Carlisle that there.was a continuous roadbed embracing that across the land here in controversy, and extending to Gadsden, was clearly competent on the questions of possession and abandonment by the Tennessee & Coosa Company and the defendant of the roadbed on this land.
[454] Rayburn was at one time the owner of this land, and through him the plaintiffs deraign their title. If, while he so owned it, he, as president of the railroad company, directed the location of the road upon it, the fact of such direction would be competent evidence for the defendant in this action, — assuming, of course, that the defendant has succeeded to the rights of the Tennesse & Coosa Co., — otherwise not. And, inasmuch as it was not made to appear that Rayburn owned this land when he had the road located upon it, this testimony should have been excluded.
Th„e several motions of plaintiffs to exclude certain of defendant’s answers to interrogatories propounded to it under the statute by the plaintiffs, the answers in question being responsive to the interrogatories, were each properly overruled. A party cannot thus speculate upon the testimony of his adversary which he has elicited and laid before the jury, even though the testimony, abstractly considered, may be inadmissible.
The only other action taken by the court necessary to be considered was the giving of the affirmative charge for the defendant. It is contended for appellee that upon the whole case the defendant was entitled to this instruction, and that the errors committed by the court, if any were committed, were therefore not prejudicial to the plaintiffs, and should not work a reversal of the judgment. This contention is rested upon each of three propositions. First, it is insisted that the effect of Hale’s deed to the Tennessee & Coosa Company was to vest the right of way in question in. that company, freed from ail preexisting inchoate liens. We can not concur in this view. It may be — we are prepared to admit that it is — a sound proposition of law that when a corporation of a public character, and with authority to exercise the right of eminent domain, pursues the statute in the taking and to the condemnation of land, and pays the owner the assessed compensation therefor, the land or easement, as the case may b§, vests in the corporation, freed from all inchoate liens and interests existing at the time in third persons ; but this is on the theory that all such inchoate rights are acquired with reference to the statutory right in the corporation to acquire the land by pursuing the statutory provisions, and are, therefore, held subject to the exercise of the right, and [455] are displaced by its exercise, the holders .of such liens or interests not being the “owner,” as the term is used in the statute, to whom alone compensation is to be made. But this is not to say that the mere holder of the legal title can, by private bargain and sale to a corporation endowed with the right of eminent domain, any more than to anybody else, cut off, destroy and defeat existing liens which, but for such sale, ripen by due course of legal procedure into full legal estates. We are aware that Mr. Borer, in his work on Railroads, says that “by parity of reasoning”. — with the doctrine which obtains as to the destruction of inchoate liens where there has been a judicial condemnation — “the same result would follow the acquisition of property or right of way if obtained by purchase, provided the quantity be no greater, and the use be the same, as that which might have been obtained by assessment.” The adjudged cases cited to this text do not support it. They merely hold that, however property is acquired for public uses, whether by condemnation or purchase, it is to be held to such uses, and is entitled to all the immunities incident to property so held, such, for instance, as exemption from taxation.— Worcester v. Western R. R. Co, 4 Metc. (Mass.) 564; Wayland v. Commissioners, 4 Gray 500; B. & M. R. R. Co. v. Cambridge, 8 Cush. 237. Nor do the considerations upon which the doctrine of displacement of inchoate rights on condemnation rests at all apply to a private bargain and sale of a roadway. In the former case the law — the same power — which gives the inchoate right also provides for the destruction of that right by a condemnation proceeding against, and payment of compensation to — not the holder of the lien or other inchoate interest, but — the owner of the land which is subject to such lien or interest, and these are, therefore, held entirely subject to the exercise of the right of condemnation. But there is no statute which authorizes the private sale for any purpose whatever, public or private, by the owner of property upon which another has a lien, so as to cut off the lien and invest the property in the purchaser, freed from all inchoate interests and liens; and to engraft such a doctrine upon our law by judicial decision would be opposed to the spirit of our jurisprudence and to the most elementary conceptions of the sacredness of vested rights [456] and property. And, moreover, excluding the deed from the Tennessee & Coosa Company to the defendant, as it should have been, it is not shown that the latter succeeded to the rights and title of the former; so that, whatever effect be accorded to the Hale deed, as between the grantor and grantee therein, the general charge in ■favor of this third party can not be supported by it.
Nor can we endorse the further proposition advanced by appellee that railway corporations and others having the right of eminent domain are not within section 3296 of the Code in respect of depredations committed upon lands taken by them without condemnation and compensation, or purchase, for quasi public purposes. There is no warrant whatever in the statute for such immunity. And these corporations have no more right than others of a purely private nature, or than individuals, to enter upon the lands of another. Indeed, as if to emphasize this, and certainly as showing the greater necessity for stringent regulations protecting the citizen from the encroachment of these quasi public concerns, the organic law itself expressly provides that there shall be no taking of property by them until compensation therefor shall have been paid. Const. Art. 14, § 7. Having thus no right to fell trees on the land of another, and there being thus, it would seem, greater danger of their trespassing upon such lands, instead of any consideration tending to take these corporations out of the statute, there is the more reason for the additional safeguard which this law affords being interposed against them than against others, and this the more especially since, whatever their necessities with respect to going upon and using the lands of others, they can always, and speedily, be met and accommodated by a resort to the simple and just remedy which the statute gives them.
Nor can the giving of the general charge in this case be justified by reference to the evidence of long continued possession on the part of the Tennessee & Coosa Co., even assuming that the defendant had succeeded to any right and title which said company had acquired by the length and character of its possession. That inquiry, as also the further inquiry whether the roadway was abandoned by the Tennsssee & Coosa Co., was for the jury, and should not have been taken from them by an [457] affirmative instruction. — Tennessee & Coosa Railroad Co. v. Taylor, 102 Ala. 224.
But the onus of proving that the alleged cutting of the trees was without their consent was upon the plaintiffs. This proof was an essential constituent of any right to recover in this action. And, in its absence from the case made by the plaintiffs, the court properly gave the affirmative charge for the defendant. — Rogers v. Brooks, 105 Ala. 549.
The judgment of the circuit court must therefore be affirmed.
Application por Rehearing.
If it be true, as insisted for appellants, that the evidence which went to show that defendant cut the trees under a claim of right and title was evidence from which the jury might have inferred a want of consent on the part of plaintiffs, and the jury found that the cutting was so done under such claim, as they would have had to do before concluding that it was done without such consent, the general charge was yet properly given, because this finding of the jury that the cutting was done under a claim of title to the land, and of consequent right to fell the timber, demonstrates that it was not willfully and knowingly done.
Application overruled.