Mayes, C. J.,
delivered the opinion of the court.
The title of appellees to the land in controversy, to the extent claimed by them, is established so clearly as to put it beyond the realm of controversy. The only question in the case which requires discussion is the question raised by the railroad company as to the right of appellees to have partition as against them. It is argued that the railroad company secured deeds granting to it •a right of way over the land, and that it has constructed its line of railway on same, and is now using the property in the operation of its road from Oklona, through the town of Vardaman, to Calhoun City, which is the terminus of the road, and is eight or ten miles west of the town of Vardaman. The facts show that the railroad company secured by its deeds only a one-half interest in the property; the other half interest belonging to ap[889]*889pellees. On account of the small quantity of land, taken in connection with its charter, and because of the numerous complainants and defendants, the chancellor very properly ordered a sale of the land for partition, which order of sale also included that part occupied by the railroad company. On behalf of the railroad company it is argued that no partition should have been ordered as against it, because such judgment is contrary to public policy. In support of this contention counsel cite many cases. We shall discuss those cases later on in this opinion.
Under section 17 of the Constitution of 1890 it is beyond the power of the state or any corporation to take or damage the property of any person, even for a public use, without due compensation being] first made. The railroad company has constructed its roadway on land to which it has not the complete title. It has thus taken private property for a public use without having compensated the owners thereof to the extent of their interest, and has not procured their title, in the face of the fact that the records in the clerk’s office fully disclose same. No public policy of the state can be allowed to override the positive guaranties of the Constitution, or divest persons of their title to property, except in the way which the law provides.
Section 3521 of the Code of 1906 authorizes the partition of land held by joint tenants, tenants in common, etc., and the railroad is of that class of tenantry. The statute makes no exception when one of the tenants in comnapn happens to be a railroad. In support of the contention of counsel that public policy forbids the pertition of this land as against the railroad company, our attention is first called to the case of Weston et al. v. Foster, 7 Metc. (Mass.) 297. But the question involved in the above case was not the same as the one involved in this case. In the Foster case, sufra, the court merely held that as the railroad company had only an easement [890]*890in certain property of -which partition was sought, and no title, it was not a necessary or proper party to the proceedings.
Our attention is directed by counsel to 21 Am. and Eng. Ency. of Law, p. 1163, and 30 Cyc., p. 178. The text merely states that there are certain kinds of property of which the court will refuse to make a partition on the grounds of public policy; that the courts have refused to decree partition of a railroad, on the ground that any division of the property would impair its usefulness, in which the public has an interest. The notes to the text in both of above volumes cite the case of Railway Co. v. Railroad Co., 38 Ohio St. 614. An examination of that case shows that the facts of that case make of it a different case from the one now before the court. It appears from the above case that one railroad corporation purchased from another undivided interest in the latter’s railroad. Before this could be done in the state of Ohio a statute allowing it was necessary, and the legislature of the state passed an act in relation to insolvent railroad companies which authorized, the sale and purchase. The act provided that the sale could be made, provided it be done without impairing "the usefulness of the selling road. In this way a tenancy in common was created, followed by a subsequent ■attempt on the part of the purchasing road to partite the road. The Ohio court held that there could be no partition of this property, either under the statute or in equity. The court said: ‘ ‘ The statute authorized the sale of an undivided interest in' the road between Newark and Columbus by the Central Ohio Company to the Steubenville & Indiana Company, ‘if the same could be done without impairing the usefulness thereof to the Central Ohio Company.’ This condition was unquestionably inserted in the statute upon considerations of public policy. In the deed of conveyance it was recited that the sale -did not impair the usefulness of the section to the ven[891]*891■dor company. It was not meant, either by the statute or the deed, that the exclusive use of the section was preserved to the Central Company, but that in the joint use of the section reasonable facilities were and would be afforded the Central Company for conducting its business over this line of the road; in other words, that one-half of the capacity of the road was sufficient to supply the necessities of the vendor company. ... It was the use of an undivided road, not the half of the road when •divided, that was thus secured to the vendor; and this not for a time limited at the pleasure of the purchaser, but for all time. This is inferable from the fact that no further power to alienate existed in either party, save such only as might result from the power to create debts. .. . . The legislature did not contemplate or intend that a partition of this property should be made, but, •on the other hand, did intend a perpetual joint use of the highway.” In the last case the selling road could not make the sale until authorized so to do by the legislature of the state and when that body authorized the sale it stipulated that it could only be done when the sale •did not impair the usefulness of the road. The court held that the partition would impair its usefulness, and that any attempt so to do was in violation of the act, and refused to order it. .The above case does not hold that public policy forbids the partition of land on which :a railroad is situated, when the railroad company has become a tenant in common with others whose title has never been parted with by them.
In the case of Pittsburgh Ry. Co. v. Fish, 158 Ind. 525, 63 N. E. 454, it appears that the town of Winamac, Indiana, undertook to sell a small portion of the roadway •of the railroad company for the purpose of satisfying •a lien claimed by the town as against the property of 'the railroad for certain local improvements assessed ■against same, and which the railway company failed or refused to satisfy, and the court said: “"When the pub-[892]*892lie grants a franchise to a railroad corporation, and-gives it the right of eminent domain, it does so upon the theory that benefits will be returned. Hence it is that the public has an interest in the exercise of such a franchise that a court of equity, in the absence of a specific statutory provision, will not sutler disturbed, when private right may find another adequate remedy..
Free access — add to your briefcase to read the full text and ask questions with AI
Mayes, C. J.,
delivered the opinion of the court.
The title of appellees to the land in controversy, to the extent claimed by them, is established so clearly as to put it beyond the realm of controversy. The only question in the case which requires discussion is the question raised by the railroad company as to the right of appellees to have partition as against them. It is argued that the railroad company secured deeds granting to it •a right of way over the land, and that it has constructed its line of railway on same, and is now using the property in the operation of its road from Oklona, through the town of Vardaman, to Calhoun City, which is the terminus of the road, and is eight or ten miles west of the town of Vardaman. The facts show that the railroad company secured by its deeds only a one-half interest in the property; the other half interest belonging to ap[889]*889pellees. On account of the small quantity of land, taken in connection with its charter, and because of the numerous complainants and defendants, the chancellor very properly ordered a sale of the land for partition, which order of sale also included that part occupied by the railroad company. On behalf of the railroad company it is argued that no partition should have been ordered as against it, because such judgment is contrary to public policy. In support of this contention counsel cite many cases. We shall discuss those cases later on in this opinion.
Under section 17 of the Constitution of 1890 it is beyond the power of the state or any corporation to take or damage the property of any person, even for a public use, without due compensation being] first made. The railroad company has constructed its roadway on land to which it has not the complete title. It has thus taken private property for a public use without having compensated the owners thereof to the extent of their interest, and has not procured their title, in the face of the fact that the records in the clerk’s office fully disclose same. No public policy of the state can be allowed to override the positive guaranties of the Constitution, or divest persons of their title to property, except in the way which the law provides.
Section 3521 of the Code of 1906 authorizes the partition of land held by joint tenants, tenants in common, etc., and the railroad is of that class of tenantry. The statute makes no exception when one of the tenants in comnapn happens to be a railroad. In support of the contention of counsel that public policy forbids the pertition of this land as against the railroad company, our attention is first called to the case of Weston et al. v. Foster, 7 Metc. (Mass.) 297. But the question involved in the above case was not the same as the one involved in this case. In the Foster case, sufra, the court merely held that as the railroad company had only an easement [890]*890in certain property of -which partition was sought, and no title, it was not a necessary or proper party to the proceedings.
Our attention is directed by counsel to 21 Am. and Eng. Ency. of Law, p. 1163, and 30 Cyc., p. 178. The text merely states that there are certain kinds of property of which the court will refuse to make a partition on the grounds of public policy; that the courts have refused to decree partition of a railroad, on the ground that any division of the property would impair its usefulness, in which the public has an interest. The notes to the text in both of above volumes cite the case of Railway Co. v. Railroad Co., 38 Ohio St. 614. An examination of that case shows that the facts of that case make of it a different case from the one now before the court. It appears from the above case that one railroad corporation purchased from another undivided interest in the latter’s railroad. Before this could be done in the state of Ohio a statute allowing it was necessary, and the legislature of the state passed an act in relation to insolvent railroad companies which authorized, the sale and purchase. The act provided that the sale could be made, provided it be done without impairing "the usefulness of the selling road. In this way a tenancy in common was created, followed by a subsequent ■attempt on the part of the purchasing road to partite the road. The Ohio court held that there could be no partition of this property, either under the statute or in equity. The court said: ‘ ‘ The statute authorized the sale of an undivided interest in' the road between Newark and Columbus by the Central Ohio Company to the Steubenville & Indiana Company, ‘if the same could be done without impairing the usefulness thereof to the Central Ohio Company.’ This condition was unquestionably inserted in the statute upon considerations of public policy. In the deed of conveyance it was recited that the sale -did not impair the usefulness of the section to the ven[891]*891■dor company. It was not meant, either by the statute or the deed, that the exclusive use of the section was preserved to the Central Company, but that in the joint use of the section reasonable facilities were and would be afforded the Central Company for conducting its business over this line of the road; in other words, that one-half of the capacity of the road was sufficient to supply the necessities of the vendor company. ... It was the use of an undivided road, not the half of the road when •divided, that was thus secured to the vendor; and this not for a time limited at the pleasure of the purchaser, but for all time. This is inferable from the fact that no further power to alienate existed in either party, save such only as might result from the power to create debts. .. . . The legislature did not contemplate or intend that a partition of this property should be made, but, •on the other hand, did intend a perpetual joint use of the highway.” In the last case the selling road could not make the sale until authorized so to do by the legislature of the state and when that body authorized the sale it stipulated that it could only be done when the sale •did not impair the usefulness of the road. The court held that the partition would impair its usefulness, and that any attempt so to do was in violation of the act, and refused to order it. .The above case does not hold that public policy forbids the partition of land on which :a railroad is situated, when the railroad company has become a tenant in common with others whose title has never been parted with by them.
In the case of Pittsburgh Ry. Co. v. Fish, 158 Ind. 525, 63 N. E. 454, it appears that the town of Winamac, Indiana, undertook to sell a small portion of the roadway •of the railroad company for the purpose of satisfying •a lien claimed by the town as against the property of 'the railroad for certain local improvements assessed ■against same, and which the railway company failed or refused to satisfy, and the court said: “"When the pub-[892]*892lie grants a franchise to a railroad corporation, and-gives it the right of eminent domain, it does so upon the theory that benefits will be returned. Hence it is that the public has an interest in the exercise of such a franchise that a court of equity, in the absence of a specific statutory provision, will not sutler disturbed, when private right may find another adequate remedy.. Accordingly it has been held that such property of a railroad company as is essential to the operation of the road, and in carrying forward its corporate purpose, will not be ordered sold by piecemeal to satisfy a statutory lien; but in lieu of an order of sale the court will award the plaintiff a personal judgment, to be collected as ordinary judgments at law are collected.” The above case-was decided as it should have been, but we fail to see-that it supports the contention of railroad in this case. No question of the failure of the railway to procure-title, in the first instance, to the land on which it had . established its line, was involved in the above case. Ample remedy was left the creditor to collect his debt, without destroying the pubic usefulness of the railroad. The creditor had no vested property rights in the road. He-had only the right to pursue such remedies for the collection of his debt as the law allowed, and if ample remedy was afforded him, without disturbing the rights, of the public, the creditor had no cause of complaint. But in this case the appellees own an interest in the-land itself. They owned it before the road was constructed, and they still oto it.
The case of Gooch v. McGee, 83 N. C. 59, 35 Am. Rep. 558, deals with the sale of corporate property under execution. The case merely holds that, when a public-corporation acquires real estate for corporate purposes. under eminent domain powers, such real estate can only be. sold under execution subject to the performance of' the duties and obligations imposed by law on the corporation. The case of Connor v. Tennessee Central Ry. Co., [893]*893109 Fed. 931, 48 C. C. A. 730, 54 L. R. A. 687, turns on Hie same principle of law. Connor attempted to enforce •a contractor’s lien by selling a specific part of the roadbed of the railway company to which it was claimed the lien attached, and the court held that this could not be •done; that the debt must be collected in the ordinary way and by ordinary processes, by the appointment of a receiver, or collected from the tolls or income, and, if this should prove insufficient, then the decree should subject the entire property and its franchise to sale as an entirety.
It seems useless to further discuss the authorities relied on by counsel. Not one of them have any application to the facts of this case. All the cases relied on by counsel deal with the collection of a debt after the railroad has acquired title to its roadway in some way hnown to the law; and when this is once done the railroad acquires the ownership, subject to the burden imposed that it will always be used so as to promote a public use of same.
A railroad corporation does not acquire an absolute title to its roadway, 'fit does not acquire a title that it may sell or dispose of at pleasure, without reference to the right of the. public to use same. The ownership •of the railroad company of its roadbed is different from that' of an individual or a private corporation: The basis of which the grant to it of eminent domain powers rests is the fact that its property is to be used for a public purpose. The right of the public to have it so use its property is imposed on the railroad property the very instant it obtains title, whether the title is obtained by private purchase or through eminent domain proceedings. Because of this fact, and because a judgment creditor can obtain no higher equities in a judgment debtor’s property than the debtor himself had, the courts have refused to allow a judgment creditor to destroy the public usefulness of a railroad by levying on a part of its [894]*894roadway and selling it for the payment of a debt, thus destroying the unity and usefulness of the road. Under the terms of its creation it is bound to run its road for the public use. It cannot rid itself of this burden. It" cannot sell its road by piecemeal itself, and no judgment creditor can do so. But no public burden can be imposed on land where the public has never acquired any title, and therefore no right to have it used for the public good. Before the public burden can be imposed on the land, the title 'must be acquired. If a railroad locates its roadway on property belonging to an individual, as long as the individual owns the property, the railroad may be dealt with as any other trespasser or tenant in common.
The case of Beck v. Railroad Co., 65 Miss. 172, 3 South. 252, has already settled the question involved in this case so far as this state is concerned. This court, speaking through Judge Campbell, said: “The proposition that a railroad company may build upon the land of one who does not object, and thereby secure the right of way, subject only to liability to his claim for damages, is not maintainable in this state, whatever may be held elsewhere. A parol license may shield from liability for trespass ; but it is revocable, and, when revoked, is no longer a protection. The only way to secure the right of way is by grant from the owner, or by condemnation proceedings, or by the statute of limitations. If the road is built without securing the right of way, the owner, who has not precluded himself, may recover damages for the trespass, and may recover the land occupied by ejectment, or may enjoin in chancery the use of the land. The fact that the charter authorizes either the landowner or the company to institute proceedings for condemnation does not in any manner abridge the rights of the landowner. He is not bound to take the initiative as to such proceedings. If a company desires the right of way, it must take steps tó secure it. If it does not, it must answer for every invasion of the rights of the landowner.”
[895]*895In the state of Mississippi a fee-simple title to land means absolute and unqualified ownership as against railroads and all persons whomsoever. It means that such land cannot be taken from the owner, except by due process of law and upon due compensation being paid therefor. It means that with this title go all the incidents of the title, one of which is to have it partited as. against a tenant in common, either in kind or by sale, controlled only by such method of partitibn as will protect the best interest of all parties; but partition may be had, it matters not who the tenants in common are.
Affirmed.
Petition to modify judgment or suspend issuance of mandate a reasonable time to allow railroad company to condemn property.
Motion sustained until further order of court.