Illinois Central Railroad v. LeBlanc

74 Miss. 650

Opinion

Willing, Sp. J.,

delivered the opinion of the court.

This is an action of ejectment by the appellee to recover of appellant a tract of about six acres of land, situated in the east ■J of the northwest J of section 14, township 1, range 7 east, in the county of Pike. It was shown on the trial that about one-half of a mile of appellant’s track was upon the land. The plaintiff in the lower court introduced in evidence, in support of his right to recover, (1) a tax collector’s deed of the locus in quo executed to L. C. and M. Lenoir, March 2, 1891, by virtue of a sale of the land for the taxes of 1890; (2) deed from L. C. Lenoir to plaintiff, dated August 11, 1892, to the lands, also deed from M. Lenoir to plaintiff to the same, dated April 8, 1892; (3) the record of a chancery suit instituted by the Chicago, St. Louis & New Orleans Railway Company and the Illinois Central Railroad Company against the appellee and others, terminating with the decree of this court in. the case of LeBlanc Illinois Central Railroad Co., 72 Miss., 669; (4) tax receipts of Sallie Harrell for two acres west side of southeast J of northwest J, section 14, township 1, range 7, for the years 1890 and 1891; (5) deed from A. J. Harrell and wife to Sarah Harrell and another, to the southwest J and two acres in west side of southeast J of northwest £ of section 14, township 1, range 7, the land being described by metes and bounds; (6) assessment rolls of Pike county for the years 1883, 1885 and 1889, showing two acres west side of southeast J of northwest J, section 14, township 1, range 7 east, assessed to Sallie Harrell.

The defendant moved to dismiss the cause, (1) because the circuit court of Pike county had no jurisdiction of an action of ejectment; (2) because the evidence shows that before the bringing of this action the chancery court of Pike county, by plaintiff’s cross bill, in the suit of the Chicago, St. Louis & New Orleans Railway Company against plaintiff et al., had acquired exclusive jurisdiction of the subject-matter of this suit, and was exclusively competent to give the relief demanded.

The action of the court in overruling the motion is assigned as error. Counsel for appellant claim that as jurisdiction of certain suits to try title to land and to decree possession, etc., is vested by the constitution in the chancery court, and as section 156 has only given the circuit court jurisdiction of the matters enumerated in said section, that the circuit court has no jurisdiction, under the constitution, of the action of ejectment. Section 160 is as follows: “And, in addition to the jurisdiction heretofore exercised to try title and to cancel deeds and other clouds upon title to real estate, it shall have jurisdiction, in such cases, to decree possession and to displace possession,’’ etc. Section 156 reads: “The circuit court shall have original jurisdiction in all matters, civil and criminal, in this state, not vested by this constitution in some other court. ’ ’ There has always been a well-recognized distinction, under the various constitutions and laws of this state, between ‘‘ matters ciVil” and ‘‘matters in equity.” The constitution of 1869 gave the circuit court jurisdiction in “all matters civil,” and provided for the establishment of the chancery court, ‘ ‘ with full jurisdiction in all matters of equity.” Judge Simrall, in Bell v. City of West Point, 51 Miss., 270, in reference to the language used in conferring jurisdiction on the circuit court, says: “Dwelling a moment on the language used, it is broad enough to embrace suits at common law as well as in equity— ‘ all matters civil. ’ But we know that the purpose was to create a court of common law cognizance, and we therefore give that import to the words. That is plain, from the history of the past as well as from subsequent sections of the same article. The sixteenth section provides for the establishment of chancery courts with full jurisdiction in all matters of equity, etc. Reading the two sections together in the light of history, and we have a superior court of original common law jurisdiction, and a court of chancery with full jurisdiction in all matters of equity. ’ ’ The framers of our constitution evidently intended by all “ matters civil ” to mean matters of common law cognizance. The matters in section 160 of the constitution are matters of equity jurisdiction of which the chancery court had jurisdiction before the adoption of the constitution, in the exercise of their general equity jurisdiction. In those matters it was given jurisdiction to grant full relief to the successful litigant by decreeing to him possession, etc., of the subject-matter of the suit. Under any construction this court is without power, under section 147, to reverse the judgment of the circuit court for want of jurisdiction in that court.

The appellant objected to the introduction of the tax deed and the deeds from L. C. and M. Lenoir to appellee, and the decree confirming his title, on the ground of a patent ambiguity in the description of the land in southeast J of northwest J of section 14, township 1, range 7, east. The lands in the deed and decree are described as fractional thirty-eight acres in > said southeast J of northwest J, assessed to J. J. Carter. It is described in the same way in the deeds from L. C. and M. Lenoir to appellee, except that in those deeds it is further described as having formerly belonged to J. J. Carter, and was part of the Carter homestead. The tax receipts and assessment rolls, and the deed from A. J. Harrell and wife to Sallie Harrell and another, were objected to as being irrelevant.

Under § 491, code 1880, and § 3776 of the present code, the evidence admitted was admissible to identify the land described in the tax deed as being in the southeast J of northwest J of the section. The roll of 1889 showed that fractional 2 acres in west side of southeast J of northwest J of said section 14 was assessed to Sallie Harrell. A description of land as a specified number of acres of the north, south, east, or west part of a particular legal subdivision is good. Bowers v. Chambers, 53 Miss., 259; McCready v. Langsdale, 58 Miss., 877; Enochs v. Miller, 60 Miss., 19.

It was held in Dodd v. Marx, 63 Miss., 443, that where the assessment roll furnishes the clue which, when followed by the aid of other testimony, conducts certainly to the land intended, such testimony is admissible. 1 ‘ It is admissible only to apply the description on the roll, which must give the start and suggest the course which, being followed, will point to the lands intended to be assessed.5 ’ It was shown by the roll that two acres in west side of southeast ¿ of northwest \ was assessed to Sallie Harrell, and one of the deeds showed title in her to that two acres. The objection that the evidence offered was not admissible to remove the ambiguity in the description of the land in the decree is not well taken, as the decree validates the sale of the lands for taxes, in the tax deed, and confirms appellee’s title under it, and declares that the deeds from Mrs. Harrell to him vested title in him to the lands described in the tax deed.

It is contended by appellant’s counsel (1) that the deeds relied upon by the appellee, and the chancery decree, cjid not convey, and could not convey, the railroad track or right of way or fee under the same,'the property being of such a nature that it is legally impossible for a tax title by tax collector’s sale, under the general statutes, to be acquired thereto; (2) that the deeds relied on and the chancery decree carried, and could only carry, the fee in the land, and that neither the railroad’s easement over the same nor its superstructure — because of public policy, said property being affected with a public use — were carried.

It is argued, in support of this contention, that under the code of 1880, §§ 597-608, inclusive, there was a special arrangement for the assessment and collection of taxes on railroad property entirely different from the provisions of the code for the assessment and collection of taxes on other property, and as this was an ordinary tax sale of the land on which appellant’s railroad was situated, the appellee acquired no title either to appellant’s right of way or superstructure by virtue of the tax deed or the decree confirming the same.

We will not go into a discussion of the question as to the validity of the tax sale, nor as to whether appellant’s right of way over these lands passed by that sale. An easement in lands is an interest in lands. 6 Am. & Eng. Enc. L., 143. The appellee, in the chancery court, by his cross bill, sought not only to have his title established, but to have all clouds removed therefrom, and the decree not only confirms his title, but cancels all interest, claim or privilege the appellant had in or to the same. The decree is conclusive as to the right of way. Did the superstructure the appellant had placed on the land pass by the tax sale to the purchasers ? And is the appellant concluded by the decree as to it? This court, and the courts of Michigan, Iowa, Illinois, Minnesota, Wisconsin, Oregon, Pennsylvania, Alabama, Florida, Texas and other states have held that the general rule as to things affixed to the freehold by a trespasser or a person entering tortiously, is not applicable as against a body having the power of eminent domain,-and entering without leave and making improvements for the public purpose for which it was created and given such power.

In Toledo, etc., Ry. Co. v. Dunlap, 47 Mich., 456, the court says: “The railroad company, whether rightfully or wrongfully, laid this track while in possession, and with purpose entirely distinct from any use of the land as an isolated parcel. It would be absurd to apply to land so used, and to a railroad track laid on it, the technical rules which apply in some other cases to structures inseparably attached to the freehold. Whatever rule might apply in case of abandonment, it is clear that this superstructure was never designed to be incorporated with the soil except for purposes attending the possession, and in proceeding to obtain a legal and permanent right to occupy the land for this very purpose, there would be no sense in compelling them to buy their own property. ’ ’

This case is cited by this court with approval in Railway Co. v. Dickson, 63 Miss., 380. Delivering the opinion of the court, Judge Campbell says: “The railroad company was a trespasser in constructing its road upon the land over which it had not acquired the right of way, but it still had the right to acquire the right of way, unaffected by the liability incurred for its trespass. The trespass committed is not involved in the determination of due compensation. The continuing right of the company to secure the right of way in accordance with its charter and the nature of its entry on the land and annexing chattels to the soil, distinguishes the case from that of an ordinary trespasser who affixes chattels to the freehold, and the rule of the common law, established when railroads were unknown, does not apply.”

In Daniels v. Railway Co., 35 Ia., 129, where, after a recovery in ejectment by the owner of the land and the railroad company instituted condemnation proceedings, the court held that the value of the improvement put on the land by the railroad company was not to be considered in assessing the damages.

In Justice v. Railway Co., 87 Pa., 28, there had been a judgment in ejectment in favor of the landowner, and the court held that the recovery did not include the chattel put upon the land by the company and the structures they compose. To the same effect are Jones v. Railway Co., 70 Ala., 227, and Railway Co. v. Adams, 28 Fla., 631, where the mandate was withheld by the supreme court for a reasonable time, to allow the railroad company to institute condemnation proceedings.

The land in this case was neither assessed nor sold as railroad property, nor for taxes due from the railroad company, but was assessed and sold under the general statutes on the subject of the assessment and sale of lands for taxes. Under our views, the title to the chattels put upon the land by the appellant, and the structures under them, was not vested in the appellee, either under the tax sale or the chancery decree, and were not included in his recovery in this case. The judgment of the circuit court is affirmed, but the mandate will be withheld a reasonable time to enable the appellant to institute and prosecute new condemnation proceedings to acquire a right of way over the lands. 7 Am. & Eng. Enc. Pl. & Pr., 705; Railway Co. v. Adams, 28 Fla., 631; 51 Am. & Eng. Ry. Cas., 544.