Hill v. Woodward

1. Tenants in Common. Rights and liabilities of tenants. Eminent domain. Right to Compensation. Constitution 1890. Where a tenant in common, on the refusal of the administrator of a deceased cotenant to contribute to the payment of taxes, permits the land to be sold for taxes and becomes the purchaser at the tax sale, and thereafter paid the taxes on the land, which was assessed sometimes to him and sometimes to both the tenants in common, held, that the heirs of the cotenant were not divested of title to the land by the tax sale nor did the statute of limitations run against them. ' 2. Constitution 1890, Section 17. Eminent domain. Public policy. No public policy of the state can .be allowed to override the positive guarantees of the Constitution or divest persons of their title to property, except in the way the law provides, for public use on due compensation being first made. . 3. Tenants in Common. Railroad right of way. Partition. Code 1906, section 3521. Where lands are owned by tenants in common and a railroad company obtains a deed for a right of way from one of such tenants and constructs its roadbed thereon, under Code 1906, section 3521, the other cotenant can sue for partition of the entire property including the right of way, and public policy does not prohibit partition of the land as against the company. 4. Same. - If a railroad locates its roadway on property belonging to an individual, as long as the individual owns the land, the railroad may be dealt with as any other trespasser or tenant in common. 5. Same. The only way a railroad can secure a right of way is by grant from the owner, or by condemnation proceedings or by the statute of limitations. 6. Rauboads. Right of way. Title acquired. A railroad company does not acquire an absolute title to its roadway. Such ownership is subject to the use of the property for railroad purposes.

Appeal from the chancery court of Calhoun county. Hon. I. T. Blount, Chancellor. Suit by E. E, Woodward et al. against J. W. Hill et al. for partition. From a decree granting relief, defendants appeal. In 1871 Aulston Woodward and T. T. Enochs purchased, by joint deed from J. W. Brake, certain lands in Calhoun county, Miss., the subject of this controversy, and thereby became tenants in common of said land. At that time the land was of little value, being situated in a river swamp, and being what is known as wild or uncleared land, and being entirely without any improvements at all. Taxes were paid on the land until about the year 1885; the land being assessed to Enochs and Woodward until 1881, and after that time to Enochs and estate of A. Woodward, the latter having died in the year 1881. These taxes were paid by Enochs, and it is claimed by the appellants that there was a verbal agreement between the two, about the year 1875 or 1876, that Enochs was to take the property as his own, in settlement of taxes and other claims against it; but no writing to this effect was drawn up, and the assessment was never changed. In the year 1885, Woodward’s administrator (his son J. IT. Woodward) having refused to contribute towards the taxes, Enochs advised him that, he was going to let the land sell for taxes and buy it in, and thus obtain title to the land in himself. Accordingly in 1886 the land' was sold 'for the taxes of 1885, and Enochs bought it in. He obtained a tax deed from the deputy sheriff and tax collector, but the same was never-placed of record. This tax sale was made five years after the death of Aulston Woodward. Between the date of the tax sale and the death of Enochs, in August, 1899, the taxes were paid on the land by Enochs, the assessment sometimes 'appearing as Enochs and Woodward, and other years in the name of T. T. Enochs. Enochs devised the land, on his death, to his. daughter, Mrs. Alice Shell, who paid taxes on it until she sold it in 1900 to J. W. Hill, through whom all the other appellants derived their claim of title. The appellees are heirs at law of Aulston Woodward, and claim the land in controversy as tenants in common with the appellants, and on June 11, 1908, filed their hill in chancery for a partition and sale of the premises and for an accounting. The Southern Eailway Company is made a party defendant to the bill, as this company had purchased a right of way through the property and constructed its line of railway.' The town of Vardanian had been built adjacent to the railroad on the property here in controversy, and lots were sold to a large number of purchasers, who were also made parties defendant. The defendants offer three defenses to the suit: First, That Aulston Woodward before his death conveyed the property by verbal agreement to T. T. Enochs, his co-tenant, in liquidation of certain indebtedness due Enochs by Woodward. Second. That in recognition of his title to said property Enochs had paid taxes on same, and in accordance with the custom then prevalent in that county, in order to perfect his title, had allowed the property to sell for taxes and bought it in his own name, and thus held it adversely to other claimants, and his title had ripened by adverse claim, many years before the bringing of this suit. Third. That the complainants were estopped from setting up any claim of interest in this land, because said land was not included in a partition suit of the lands of Woodward heirs, and because J. -H. Woodward, who was the agent and attorney in fact of the Woodward heirs, had made no objection to the tax sale and purchase of the land thereat by Enochs, or to the subsequent sale of the premises at public auction, when lots were bought by the various defendants. The Southern Eailway Company, which was made a party defendant by the amended bill, claims that a partition of the property should not apply as against said railroad, because 5f public policy. This feature of the case is dicussed fully in the opinion of the court. The chancellor found for the complainants. The decree contained the following special findings of fact: (1) That complainants are not barred by any statute of limitation; (2) that complainants are not estopped from asserting their claim to an interest in the land; (3) that Aulston Woodward was a tenant in common with T. T. Enochs at the time of the death of the former; (4) that Aulston Woodward’s undivided half interest in the land descended to complainants; (5) that complainants have been tenants in common with Enochs until the death of the latter in 1899; (6) that no statute of limitations be-began to run against the complainants during the lifetime, of T. T. Enochs; (7) that there was no adverse possession or holding of this land by T. T. Enochs during his lifetime, against complainants; (8) that complainants are tenants in common with defendants; (9) that they are entitled to the relief prayed. The court further ■ordered that the clerk be appointed a commissioner to sell the land in controversy, including the right of way purchased by the railway company,, and'to report back to the board on a subsequent date, and to take and state an accounting. The chancellor granted an appeal from this decree. Weston et al. v. Foster et al., 7 Metcalf (Mass.) 297. You couldn’t partite the right the railroad had to pass ■over the land, and you couldn’t sell it and divide the pro-needs because it would be against public policy to segregate and cut out one mile of the railroad, and sell it to the highest and best bidder; it would thwart and destroy the very purpose of the creation of the railroad to serve the public, and so that ground of demurrer was good and should have been sustained, and yet the decree that the court rendered ordered all this land sold regard•less of the right the railroad company had to pass over that land. There was no reservation made in order •that it might take some steps to condemn or negotiate ■for the right with the rest of the tenants in common, if they should be so inclined. As to the second ground of demurrer, “the bill seeks •a partition against the railroad, when it is contrary to the public policy of the state of Mississippi, to decree n sale for partition, or partition in kind, of a railroad, on the ground that any division of the property would impair its usefulness, in which the public has an interest.” The mere suggestion or statement of this ground” -is convincing to one who is interested in the public wel.fare of the state. The statement of the ground is axiomatic. We know that you cannot levy on and sell a railnoad company’s roadbed and right of way like you can any other property. The public have an interest in the maintaining of the railroad, a going concern, especially so in this day and time, and they are asserting that interest with a good deal of vigor. They are not only interested in the rates charged to transport passengers and freight, but they are interested in the schedules, and that the train shall go, and when it shall go, and how it shall go, and the appliances it shall go equipped with, •and the character of roadbed it shall go on, etc., all going to show that the public interest demands that a private individual shall do nothing, and certainly a court •of equity should do nothing, to retard the railroad in its undertaking, and, in this instance, practically destroy it, if it should not be able by some combination of circumstances to buy in this quarter section of land, over which' it has an easement or right to operate trains to ■serve the public. I say public policy annuls the decree •of this court as far as this railroad company is concerned. See authorities: 21 Am. & Eng. Enc. Law (2nd Ed.), p. 1163; 30 Cyc., p. 178; 2 Elliott on RailYoads (2nd Ed.), section 520; Connor v. Term. Central Railway Go., 109 Fed. 931; same case, 48 C. O. A. 730, and 54 L. E. A. 687; Pittsburgh G. G. & St. L. Ry. Go. v. Pish, 63 N. E. Eep. 454; John G. Brady et al. Exrs. v. Bradley Johnson et al., 20 L. E. A. 737, note; Gooch v. McGee, 35 Am. Eep. 558. A cotenant can aequire title against Ms cotenant by adverse possession, coupled with notice thereof. See Hignite v. Mignite, 65 Miss. 447, 4 So. 345; Bently v. Callaghand, 79 Miss. 302, 30 So. 709, and cases there •cited; Dobbins v. Dobbins, 10 L. E. A. N. S. 185, 141 N. C. 210, 53 S. E. 870, and notes with cases cited; 1 Cyc. 1071, 44b, and notes, or by actual ouster and adverse possession; Eastman, Gardner é Go. v. Minton, 86 Miss. 604, 38 So. 779. The rule is well announced in Eastman, Gardner £ Go. v. Minton, where the court says: “The facts of this case do not bring it within the scope of the rule which prevents one cotenant from acquiring a title in himself to the common estate without either an actual ouster, or actual or constructive notice of the assertion of the hostile claim.” That expression while dicta in that case probably is supported by the decision and we think is an announcement of the true rule that a cotenant in order to establish title in himself to the common estate must prove it, either on actual ouster, or actual or constructive notice of the assertion of hostile claim. Limitations begin to run and the dispossessed tenant’s right of action accrues when notified of unequivocal intent on part of his cotenant to oust him. Bently v. Callaghan, 30 So. 709; Alsobroolt v. Eggleston, 69 Miss. 833, and other cases cited therein. Or that Ms claim and possession is hostile. 1 Cyc., 1073c: Jonas v. Flanmgan, •69 Miss. 577. Physical violence is not necessary to effect an ouster. Bently v. Callaghan, Ib.; 1 Cyc. 1073. Evidence sufficient to show notice so as to start limitations. Wheeler v. Taylor, 32 Ore. 421, cited in note 15, test in 1 Cyc. 1973. Estoppel. Aulston Woodward granted the land by parol to Enochs. Enochs assumed possession under the grant. Aulston Woodward died and his heirs cognizant ■of the facts, and knowing their rights, ratify the acts of Aulston Woodward, file a suit for partition of the lands of Aulston Woodward in the county of the land in ■controversy, which suit is a matter of record, and in that suit the lands of which partition is asked are described as all the land of the Aulston Woodward estate, but which suit does not include the land in controversy. They know Enochs is claiming the land and paying the taxes on it. Many years pass and T. T. Enochs dies having willed the land in controversy to a daughter, who sells for a valuable consideration to an innocent party, •J. W. Hill, whose deed is placed on record as required by law as notice to the world. Some of the Woodwards are residents of the county, one of them acting by written ■authority as agent and attorney in fact and real representative of the other heirs. This agent lives near the land, is fully informed of his and his principal’s rights, was at Pittsboro the day of the sale of the land for taxes, when T. T. Enochs bought it in and was informed that it would be sold for taxes on that day at Pittsboro. After this long abandonment of their claim and after •Jim Woodward had in this way assisted in starting the town and getting people, innocent purchasers, to invest their money there and improve the land and enhance ■prices, he with his principals file suit to revive a claim long abandoned. Railroad Company v. Ragsdale, 54 'Miss. 200. Certainly if there is no estoppel in the acts of Jim Woodward yet his acts and the sale show that he had recognized the claim of Enochs and are strongly corroborative of evidence showing abandonment by Woodward ;and hostile claim by Enochs. It is a well-settled principal of law that tenants in common, not in reversion or remainder, of a tract of land may by a partition proceeding under the statutory laws of Mississippi, have the same partitioned in kind among them, and if incapable of partition in kind, as in this case, then sold for division of proceeds among cotenants. Any one or more of such cotenants may file the bill for partition. Chapter 103 Miss. Code 1906. Partition of land is a matter of right, the law recognizing that it is better to hold land in severalty than in-common. Appellants contend in their brief that adverse possession continued for the prescribed time under circumstances prescribed, confers title, having reference* of course, to the facts in the case at bar as viewed by them. The facts are, no one was in actual possession of this land until J. W. Hill went into possession of same-under his deed to same from Mrs. Alice Shell December 20, 1900. T. T. Enochs, the cotenant of Aulston Woodward, died in 1899 and just before he died he made his will in which he devised this land to his daughter, Mrs. Alice Shell. The deed from Mrs. Shell to Hill in 1900-constituted the first hostile act or claim of ownership to this land, unless the court should hold that the devise of this land by T. T. Enochs to his daughter, Mrs. Shell* in 1899, constituted the first act of hostile ownership. If the statute of limitations of ten years began to run-from either date, still complainants would not be debarred from bringing this action, for this suit was filed in May, 1908. See Gardner v. Hinton, 86 Miss. 604. This: case holds that to constitute presumptive notice to all' parties in interest of the claim of the occupant, there must be “actual adverse possession,” the nature of the occupancy, the extent of the possession, the character of the control, the rights of ownership exercised over the-land, being the determining factors in the eyes of the law to constitute presumptive notice to the world; and this actual occupancy must be coupled with no obligation on the part of the adverse claimant to give actual notice of his adverse claim to the other tenants in common, as where a tenant in common conveys the whole estate in fee and the vendee sets up a claim in his own right to the whole tract of land. Even if T. T. Enochs, being the original cotenant of Aulston Woodward, had been in actual possession of this land, asserting a hostile claim thereto, any time from the joint purchase in 1871 to his death in 1899, we submit that under those circumstances,, which did not exist, he would have been under such relation to the other tenants in common as to have imposed upon him the obligation of giving actual notice to them as a condition precedent to the assertion of such hostile claim, for the possession of one tenant in common is the possession of all, and without actual notice it is difficult to tell just when one tenant in common is asserting in himself full claim to the whole land, in the absence of an actual ouster. Eignite et al. v. Eignite, 65 Miss. 447. In this case the cotenant claiming adversely offered to sell the land as his own to a third party, yet the court held that there was not sufficient adverse holding by the cotenant in possession to put in operation the statute1 of limitation as against the other cotenants. See, also, the case of AlsobrooJt v. Eggleston, 69 Miss. 833, where'it was held that the payment of taxes and actual entry upon the iand, and clearing it and building a house upon it, and claiming ownership over it was not sufficient evidence of an ouster nor of adverse holding in the absence of actual notice to the other cotenants of such adverse claim of ownership, especially where such adverse claimant had within the time recognized even inferentially, the title of the other cotenants in the land,. In a case of this kind, considering the nature and character of the land in controversy, owned by cotenants, it would have been almost impossible for one cotenant to have acquired title as against his cotenant by any means less than actual notice to him, either by directly notifying each and every one of the cotenants or by some proceeding at law of which they were bound to take notice that the tenant in possession was intending to oust them. Because with reference to this property there •could be no presumption of abandonment on the part of the Woodward heirs, for the reason that there was nothing to abandon. There were no rents nor profits from it which one tenant could appropriate exclusively to himself, and this would have been about the only way of proving exclusive and hostile possession of this character of land short of direct notification. For an admirable discussion of this whole question, :see note to Joyce v. Dyer, 109 Am. St. Rep. 609.