Hardy v. Alabama & Vicksburg Railway Co.

73 Miss. 719

• Court: Mississippi Supreme Court
• Decided: March 15, 1896
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The peremptory instruction for the defendant should not have been given. There is no decision or utterance of this court giving countenance to the view that, under the disclosed conditions, the defendant was not under the duty of maintaining the crossing over its roadway.

In K. C., M. & B. R. R. Co. v. Jones, ante, p. 397, we held that the duty of putting up and maintaining stock gaps and cattle guards was imposed only where and when the track passed through the inclosed lands of the adjacent proprietor. This rested upon the words of the statute, which provide that “it is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards when its track passes through inclosed lands.” Code 1892, § 3561. But the statute says nothing about inclosed lands where it refers to plantation roads. It merely declares that the railroad company shall ‘ ‘ make and maintain convenient and suitable crossings over its track for necessary plantation roads. ’ ’

In Seelbinder v. I. C. R. R. Co., ante, p. 84, we held that one whose land was bounded on one side by the railroad was not entitled, under the statute, to a crossing to enable him to reach the land of another, over which he exercised certain privileges by license. But this was not upon the ground that the land was not inclosed, but because it was not his land — not a part of his plantation.

The contention of appellee that the crossing was of but little value to the appellant, and that to maintain it subjects the company to serious inconvenience and hazard, is not sustained by the testimony. Access to his residence from the public way is over this crossing, and without it the appellant is bottled up, and can only get to the public highway by license of his neighbors or by trespassing on their lands. To reach the highway, or his cow lot, or his well or wagon shed, he must now travel three-fourths of a mile, whereas, before the crossing was closed, the distance was but a few yards. But, aside from the manifest necessity of the crossing to the reasonable use and enjoyment of the plaintiff’s home, the way was his property, and, regardless of its value, he is entitled to maintain this action for the trespass committed by the defendant in its obstruction. A way is an incorporeal hereditament — a right exercisable over the land of another — and may be acquired by an adverse enjoyment for the period required by law to acquire title to land by prescription. Bonelli v. Blakemore, 66 Miss., 136. The declaration contains two counts — one for the statutory penalty, the other for the real injury. Upon either, on the disclosed facts, he was entitled to recover.

Reversed and remanded.