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."

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,

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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.

"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 necessary 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 dis-tance 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.

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

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ings. After the close of the testimony the court charged the jury that if they believed from the evidence that the company before named entered into the written contract with the Visschers, and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Visschers did perform it so far as permitted by the corporation to do so, and the corporation failed to make the full payments due to the Visschers under the contract, the corporation, and all persons claiming under it, were estopped from setting up any title in the premises sued for adverse to the Visschers, and their possession under the contract was not adverse. The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant that it was only an easement, and not the subject of a levy and sale under execution, was not well founded. To each of these charges the defendant excepted. There were exceptions to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned.

The right which the Opelika & Oxford Company obtained under the deeds from McLemore and others (and the right obtained by condemnation is set forth as of the same character) was described in the deeds as "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 it was provided that, "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 the grantor, describing it, "and running in such direction through said tract of land" as the company, by its engineers, should think best suited for the purpose of locating and establishing its works. The grantor conveyed this to the company, and its successors and assigns. The deed also provided that, "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." The habendum was to have and to hold the same to the company, its successors, and assigns, to its "own proper use, benefit, and behoof forever, in fee-simple." Then followed the further provision that, should the contemplated railroad not be located and established on and along the strip, parcel, or tract of land described in the deed, the deed should be wholly null and void, and of no effect.

The right granted was merely a right of way for a railroad. It was granted to an existing corporation, which had a franchise. The grant to the "assigns" of the corporation cannot be construed as extending to any assigns except one who should be the assignee of its franchise to establish and run a railroad. Nor did the mention of rights, members, and appurtenances belonging and appertaining to the strip of land, or the use of the words "forever, in feesimple," enlarge what was otherwise the limited character of the grant. No fee in the land was conveyed, nor any estate which was capable of being sold on execution on a judgment at law, or separate from the franchise to make and own and run a railroad. The corporation could not have made a voluntary conveyance of the right of way, severed from its franchise. What it acquired was merely an easement in the land, to enable it to discharge its function of making and maintaining a public highway, the fee of the soil remain

ing in the grantor. By the terms of the charter of the Lafayette Branch Company, it was given the power to purchase, hold, lease, sell, and convey real, personal, and mixed property, so far as should be necessary for the purposes mentioned in the act; namely, to construct and operate the specific railroad authorized therein, with power to "lay and collect toll from all persons, property, merchandise, or other commodities transported thereon." By the terms of its charter, therefore, in connection with the terms of the deeds of the right of way, that right was indissolubly linked to the franchise, and to the purpose of the existence of the corporation, and to its public functions, so long as they should exist. It would violate not only the expressed intention of the grantors in the deeds, but the manifest purpose of the legislature of Alabama, to permit a private person to seize and appropriate the right of way, by the purchase of anything at a judicial sale, apart from the franchise on which the right of way was dependent. The sheriff's deed purported to convey, in words, “the said tract of land or railroad bed, to-wit, the right of 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." If the deed undertook to convey any land or soil or road-bed, it conveyed with it the right of way. The deed, in reciting the levy, states that it was made "on the following tract or lot of land, as the property of the said railroad company, to-wit, the right of way," etc., and states that that was what was sold. It was not lawful for the purchasers to have a deed of the right of way, and if they obtained a deed of anything, the right of way was included, or else they received nothing beyond, perhaps, a right to carry away from the land what the company had put upon it.

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The bill of exceptions states that a like right of way through the lands of the proprietors of the soil was obtained by deed, in Lee county, from a point about two miles north of Opelika to the south line of Chambers county; and that, under executions issued to Lee county on the same judgments, there, were levies made on the right of way of the company so far as the same had been obtained by it up the line of Chambers county, and a sale by the sheriff. of Lee county of what was so levied on, to the same persons who bought at the sale in Chambers county. But at the sale in Lee county a different purchaser might have bought the right of way, and there would then have been a division of the ownership of the line of the road, created as a unit and intended to remain such, resulting in a different control, with no franchise to collect toll. No such thing could be done.

The policy of the state of Alabama on this subject is indicated by the provisions of her constitutions of 1865, (article 1, § 25,) of 1867, (article 1, § 25,) and of 1875, (article 1, § 24,) "that private property shall not be taken or applied for public use unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: provided, however, that laws may be made securing to persons or corporations the right of way over the lands of other persons or corporations;" "but just compensation shall, in such cases, be first made to the owner." In Alabama & F. R. Co. v. Burkett, 42 Ala. 83, it was held that, under this provision, a railroad company acquired no absolute title to land in fee-simple, but only a right to use for its purposes. Nor is a right of way such as may be thus secured, or such as was granted by deed in the present case, within the meaning of the provision of the Code of Alabama that executions may be levied on real property in which the defendant "has a vested legal interest, in possession, reversion, or remainder, whether he has the entire estate, or is entitled to it in common with others." Code 1852, § 2455; Code 1867, § 2871; Code 1876, §