be taken as the collective result from the whole case. It cannot be judged from mere isolated expressions in the opinion.

The rule contended for by the appellants, that negligence and fault must be proved, and not presumed, is undoubtedly a sound one, and hardly needs cases to support it. But the circuit court evidently did not rest the case on presumption, but upon proof, from which it properly deduced negligence on the part of the steam-ship. At all events, this court, upon a careful consideration of the facts found, is satisfied that there was such negligence, and that it was the cause of the catastrophe.

The decree of the circuit court is affirmed, with interest to be added to the amount from the date of the same.

(114 U. S. 340)

EAST ALABAMA RY. Co. v. DOE ex dem. VISSCHER and others.

+373

(April 13, 1885.)

RAILROAD COMPANY-EXECUTION-SALE OF RIGHT OF WAY.

Various owners of lands in Alabama granted to a railroad corporation of that state, and its assigns," in 1860, a right of way through the lands, to make and run a railroad, the corporation having a franchise to do so and to take tolls; and it obtained a like right, as to other land, by statutory proceeding. It graded a part of the line. V., a judgment creditor of the corporation, in 1867, levied an execution on the right of way, and it was sold to V., and the sheriff deeded it to him, and he took possession of the road-bed. In 1870 he contracted with another railroad corporation to complete the grading of the line of road for so much per mile, and, on being paid, to transfer to it all his title to the franchise, right of way, and prop erty of the old corporation. He completed the work, and was not paid in full, but gave possession of the road, in 1871, to the corporation, and its franchises and, road and property passed, in 1880, to another corporation, the defendant, against whom V. brought an action of ejectment, to recover the road-bed. Held, (1) the right of way could not be sold on execution, or otherwise, to a purchaser who did not own the franchise; (2) there was nothing in the contract to estop the defendant from disputing the right of V. to recover in ejectment, on the strength of his title; (3) V. could not recover.

In Error to the Circuit Court of the United States for the Middle District of Alabama.

Edward Patterson and H. C. Semple, for plaintiff in error. Sam. F. Rice, for defendants in error.

6

BLATCHFORD, J. In November, 1880, the defendants in error brought an action of ejectment, in the circuit court of Chambers county, Alabama, against the East Alabama Railway Company, to recover premises described in the complaint as follows: "A certain tract or parcel of land, being the railroad bed of the railroad, formerly known and called the East Alabama & Cincinnati Railroad,' from Lafayette to the county line of Lee county, together with all the land contiguous to said road-bed, on each side thereof, to the distance of 75 feet from the center thereof, said railroad being now known and called as the East Alabama Railway,' with the appurtenances, situate in the county of Chambers aforesaid." Lafayette is in Chambers county, and Lee county lies south of Chambers. The suit was duly removed by the company into the circuit court of the United States for the Middle district of Alabama. It was tried before a jury, in December, 1881, on a suggestion that the company had been in adverse possession of the premises for more than three years before the bringing of the suit, and had made permanent and valuable improvements by building a railroad thereon; and on the plea of not guilty. The jury found for the plaintiffs "for all the prop

erty described in the complaint," and assessed their damages at $3,963.40, and there was a judgment accordingly. The company brings a writ of error.

The bill of exceptions sets forth all the evidence in the cause. * The following are all the facts which it is needful to state: The Lafayette Branch Railroad Company was incorporated by the legislature of Alabama, February 7, 1848, to construct a railroad from Lafayette to intersect or connect with the Montgomery & West Point Railroad at some suitable point between Chehaw and West Point. By an amendatory act of April 9, 1854, the company was authorized to extend its road beyond Lafayette in the direction of the Tennessee river, and to connect the same with any railroad built, or being built, or to be built, so as to connect with some point on the Tennessee river. By an amendatory act of January 25, 1860, its name was changed to the Opelika & Oxford Railroad Company, and it was authorized to connect its road with the Alabama & Tennessee River Railroad at or near Oxford, Calhoun county. The companies were successively organized. In 1861 one Richards was elected president. The Opelika & Oxford Company acquired the right of way through the lands of all the proprietors of the soil, from a point on the Montgomery & West Point Railroad, about two miles northerly from Opelika, in Lee county, to Lafayette, by deeds from all the proprietors, (save in one case.) The deeds, except in the description of the land through which the road was to pass, were all in the form of the following one:

"MARY F. MCLEMORE TO OPELIKA & OXFORD R. R. Co.

"Alabama, Chambers County: This indenture, made this thirty-first day of August, in the year of our Lord one thousand eight hundred and sixty, between Mary McLemore, of Chambers county, of the one part, and the Opelika & Oxford R. R. Company, of the other part, witnesseth: That the said Mary F. McLemore, for and in consideration of the sum of one dollar to her in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth give, grant, bargain, and sell unto the said railroad company, and their successors and assigns, the right of way over which to pass at all times by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad with requisite number of tracks; and to this end the limit of said right of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed, and to extend in length through the whole tract of land owned and claimed by said Mary F. McLemore, and known as the north half of section 23, township 22, of range 26, situated, lying, and being in Chambers county, adjoining lands of James F. Dowdell, Evan G. Richards, and Nolan J. Wright, and running in such direction through said tract of land as the said Opelika & Oxford Railroad Company, by their engineers, shall think best suited for the purpose of locating and establishing their works; and connected with the said right of way, the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber on each side of said road as would, by falling on or striking the same, injure the rails or other parts of said road, together with all and singular the rights, members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in anywise appertaining, and, more especially, the right of way over the same; to have and to hold the same unto the said Opelika & Oxford R. R. Company, their successors and assigns, to their own proper use, benefit, and behoof forever, in fee-simple, upon condition, and it is expressly understood, that should the said railroad contemplated as aforesaid be not located and established on and along said strip, parcel, or tract of land described in the above and foregoing indenture, then said indenture is to be wholly null and void, and of no effect; and the said Mary

F. McLemore, her heirs and assigns, will warrant and defend the title thereof unto the Opelika & Oxford Railroad Company, their successors and assigns, against the claims of all persons whatsoever. In witness whereof, the said Mary F. McLemore hath hereunto set her hand and seal the day and year first above written. MARY F. MCLEMORE.'

"9

As to the excepted case, which related to a section of land, one mile square, in Chambers county, through which the road-bed sued for runs in that county, the company caused the same character of rights and right of way through that section of land, as was conveyed by the deeds referred to, to be condemned for its use under statute authority, and the sum assessed was finally paid to the owner. In 1860 the company employed engineers, who laid out and staked off the full right of way conveyed through all of the lands, and cut out the width through woods; and it made contracts with contractors for the grading and culverting of a railroad along the right of way, who built for it a great deal of such grading and culverting; and all the work done was done on the right of way thus staked out, but no other work was done on it except such culverting and grading, and this was not continuous through the whole line in Chambers county sued for, but there were several intervals where no work of grading and culverting was done; and the company was in the undisturbed possession of the whole of the right of way.

The company became embarrassed for want of means during the war, and ceased, before July, 1861, to do any work on the line, leaving it incomplete as to grading and culverting, and no work was done by it afterwards on the line. Richards, as late as 1863, removed, at a small expense to himself individually, some logs which had lodged in one of the culverts, to save the culvert and grading from injury, and he looked over the work from time to time. No meeting of the directors or stockholders was held after July, 1861, and no corporate act was done by either after that date. The company was without means to prosecute the building of the road any further.

One Lockett and the firm of D. W. & J. G. Visscher were contractors, to whom the company was indebted for work on the line. Lockett recovered one judgment and the Visschers another against the company, October 26, 1866, in a court of the state, by service of process on Richards, as president; the former for $14.457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers county, November 7, 1866, and levied on that day, according to the return on each writ, on a house, and lot, and also on "the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, and all the appurtenances belonging to said railroad company, from Lafayette to the edge of Lee county, and also the surveying instruments belonging to said company." The plaintiff's attorney stopped proceedings on those executions on the twelfth of April, 1867. A second execution was issued on each judgment to said sheriff, May 8, 1867, and levied on that day, under the Lockett execution, according to the return thereon, on a house and lot, and also on "the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, to the edge of Lee county, and also all the surveying instruments belonging to said company;" and under the other execution, according to the return thereon, on the same property, omitting the words "the right of way has been obtained, to." After a sale, the sheriff executed the following deed to the purchasers:

"This indenture, made and entered into this third day of June, 1867, between R. J. Kellam, sheriff of the county of Chambers, in the state of Alabama, of the one part, and D. W. & J. G. Visscher and A. L. Woodward, of the other part, witnesseth: That whereas, on the twenty-sixth day of October,

*346

1866, a judgment was duly rendered in the circuit court for the county of Chambers, in the state aforesaid, at the fall term of the said court, for the sum of twelve thousand three hundred and eighty-three dollars and costs, in favor of Abner M. Lockett, and one in favor of D. W. & J. G. Visscher for fourteen thousand four hundred and fifty-seven dollars and twenty-one cents, and against the Opelika & Oxford Railroad Company, on which said judgments there were issued by the clerk of the circuit court for said county on the eighth day of May, 1867, certain writs of fieri facias in favor of said Abner M. Lockett and D. W. & J. G. Visscher, and against the said railroad company, directed to any sheriff of the state of Alabama, whereby such sheriff was directed to levy of the estate, etc., of said railroad company, and make the said sum of twenty-six thousand seven hundred and fifty-one 4-100 dollars, besides costs, and which said writ was, on the eighth day of May, 1867, placed in the hands of the said R. J. Kellam, as sheriff of said county of Chambers,*for the purpose of its levy and execution; and whereas said R. J. Kellam, as sheriff as aforesaid, after the said writ had come into his hands, and while the same was in full force, did, on the eighth day of May, 1867, levy the same on the following tract or lot of land, as the property of the said railroad company, to-wit, the right of way to Opelika & Oxford Railroad Company, so far as the right of way has been obtained, from Lafayette to the line of Lee county, and all the appurtenance from Lafayette to the line of Lee county, lying and being in said county of Chambers; and whereas, the said R. J. Kellam, as sheriff as aforesaid, after having duly advertised the said tract of land or railroad bed for sale in the mode prescribed by law, did, in accordance with said advertisement, on the third day of June, 1867, at the court-house, in the town of Lafayette, proceed to sell the same, under and by virtue of said writ of fieri facias, and the said D. W. & J. G. Visscher and A. L. Woodward having bid for the said land or railroad bed, then and there selling as aforesaid, the sum of five hundred dollars, and it being the highest and best bid that could then and there be got for the same, he, the said sheriff, did therefore sell and cry off the tract of land or railroad bed to the said D. W. & J. G. Visscher and A. L. Woodward. Now, therefore, in consideration of the premises, the said party of the first part, as sheriff of the said county of Chambers, has and does hereby bargain and sell, alien and convey, unto said D. W. & J. G. Visscher and A. L. Woodward, the said tract of land or railroad bed, to-wit, the right to the Opelika & Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee county, and all the appurtenances belonging to said road from Lafayette to the line of Lee county, to have and to hold the aforesaid premises and land, together with all and singular [its] appurtenances thereunto belonging, to the said Opelika & Oxford Railroad Company, and to their heirs and assigns, forever. And said party of the first part, as sheriff as aforesaid, does covenant with the said party of the second part that he, as sheriff as aforesaid, will warrant the title of said to said party of the second part so far only as he by virtue of his office is authorized to do; but it is expressly understood that said R. J. Kellam, sheriff, is in no event to be individually liable for anything herein contained.

*347

"In testimony whereof, the said party of the first part has signed, sealed, and delivered this deed on the day it bears date.

"ROBERT J. KELLAM, "Sheriff of Chambers County, Alabama."

After the sheriff's sale Richards abandoned or turned over to the purchasers the line of culverting or grading, as far as he could do so, that is, he exercised no further authority over it,-and the Opelika & Oxford Railroad Company made no further claim to it. On the sixth of April, 1870, D. W. & J.

G. Visscher entered into a written contract with the Eufaula, Opelika, Oxford & Guntersville Railroad Company, which was signed on behalf of that company by one Pennington, as its president, and was recognized and acted on by it. Its name was afterwards changed to the East Alabama & Cincinnati Railroad Company. The two companies were one and the same corporation, chartered by Alabama to build a railroad from Eufaula to Guntersville via Opelika and Oxford. In the fall, before the contract was entered into, D. W. Visscher was invited by Pennington to see him as to whether Pennington's company could not arrange to purchase for its line Visscher's grading and right of way from said junction to Lafayette. Pennington told Visscher he could build by the side of Visscher's line, but would like to purchase it; and they agreed that the Visschers should go to work completing. the grading, and that Pennington's company would furnish the means to pay for the work as it progressed. The work was begun, with the verbal understanding that the written contract should be executed, and it went on till that contract was executed, and then under the contract till the Visschers completed it to Lafayette, over the right of way or line described in the deeds therefor, and the company accepted it as done according to the contract, about May 3, 1871.

By the terms of the contract it was agreed that the Visschers should "form, prepare, and finish the clearing and grubbing,"grading, masonry, trestle-work, cattle-guards, road and farm crossings, track laying, including switches, frogs, and turn-outs, three warehouses, three water-tanks, with fixtures complete, including the furnishing of materials and all other things requisite and nec-essary to complete the road ready for the running of trains, except the iron materials which go into the superstructure of the road," from Opelika, or two miles north thereof, as the company should elect and designate, for a distance of 20 miles, to a point beyond Lafayette. The contract specified the terms of compensation, and provided that on the completion of the 20 miles, and the payment of the amount of the contract, D. W. Visscher should transfer to the company "all right and title vested in him to all franchises, right of way, or other property belonging to, or pertaining to, the said road, under the old organization known as the Opelika & Oxford R. R." The Visschers were not paid the full amount due to them for the work done under the contract, and claimed that there was due to them more than $100,000.

Under a decree of sale made in a suit for the foreclosure of a mortgage made by the East Alabama & Cincinnati Railroad Company, Edward Livingston and Richard Irvin, Jr., purchased, and received from the proper officer, on the nineteenth of April, 1880, a deed of the "entire corporate property of, or belonging to, the East Alabama & Cincinnati Railroad Company, used for railway purposes, and all and singular the entire railroad of said company, extending from Eufaula, Alabama, to Guntersville, Alabama, being about two hundred and twenty miles in length, at present unfinished, its entire franchises and privileges, held and acquired, together with the right of way, road-bed, road, and all its ways and rights of way, etc. The plaintiff in error became a corporation, under the laws of Alabama, on the twenty-eighth of May, 1880, and on the thirteenth of July, 1880, Livingston and Irvin conveyed to it the property so deeded to them, by the same description.

*

99

At the trial the plaintiffs offered in evidence transcripts of the proceedings as to the said judgments, executions, levies, sale, and sheriff's deed. The defendant objected to each of them “as illegal and irrelevant evidence, and also because they tended to show the sale under execution and conveyance by the sheriff of an easement alone, not the subject of an ejectment." The court overruled each of the objections, and allowed each of the transcripts to be read in evidence, and the defendant excepted separately to each of the rul