FEDERAL

vol. 51.

as opiniqn after the return of the, master's report, has supplied by tbeappellant by direction of this court; and the appeal iSJrom so much of the final decree as the appellant complains of.' Under these circwnstanws, b9th motions,to dismiss .the appeal must be denied.

FLoRIDA

SOUTHERN, R. Co.

fl.

LoRING.

(04rcuU COU11 oJ

C-£t'C'I./-U. June 20,

No. 99. L BnO'\'JBlU'-'Jltp.JlTO In no length ot chain ot title by deeds which does not reach back to the 10vel'elgnty:Ot'the.soil, and which tails to show possession by one at the granton, is in'itselt to constitut.e prtmafacte evidence ot title which would require detendant,m'posse\lsion' to detend,hispossession; and the payment ot, taxes by plaintiff ion tile' ,land ·,conveyed by iUch deeda'does not, as a matter ot law, show posl\el\siou.., , '! I. S.ulB-PRovgIOB, OJ' COURT A.ND OJ' Thetri&1 'ollgellbould construe deeds and other written Instruments given in ev!and instruot the jl1ry as to their le$&1 etre9t, ,and as to hQW tar reci1j&Js in su,c:ih instruments are binding upon the and privies thereto; but, If lJUoh reol'ti&lll can be used at all against strangers, they must be submitted with to thejv.ryl torce is not to be by the ju<J,ge simply because they are part or a deed. L B.ulE-EVIDBNOB OJ' POSSESSION-INSTRUCTIONS. Where.1nrejeotment, Itibe'1and sued tor Consists ot two blocks in: a populous City, and it isebown that J;I18Uypersonshold ,possession under grant,8 :tromplaintifl's gratltors, as' eVidence tends to show that the grantors must have' had possesin the trial judge to withdraw this issue ot taot:trom:the jury. ' .. ,l(NOWLB:\>GE. "" " ' , '(Jnder the,' Flonda statuUl,'relatbig' to, adverse possessiou 'byolie Claiming title not founded upoa a written instrument ora judgment,the question ot suoh possession is notJ.atJ;ected !Jieadvers9 , ,,A,nd where a railroad laId Its track op'lllond under a olw.m of right more than seven years before thebeginiD'I1ig:6f 8; snit 'in' ejectillent-for suob land, and open).y used the track for tAe dailY! passin« 01 its!l';l1oios without oonsellt of the owners,suoh use i,sadverse, and the oomllany lias aequired 1;be permanent right to cmtinue the same.
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In Errot 'to" the, Circuit, Court of 'the United States 'f9r the Northern District of FIoridn. ' Action in ejectment by Caleb W. Loring against the Florida Southern Railroad Company. Verdict and judgment for plaintiff. Defendant brings error. John for plairitifHn error. H. Bisbee, for defendaritin error: , Before MCCORMICK, Circuit Judge, and LoCKE and, BtLLINGs, District Judges. , , ' , MCCORMloB:, Circuit Judge. This is an action of.ejectment. Declaration form. ' The plea is not guilty, which puts in issl1Q the, title to the land in controversy. The action was brought by defendant iX)errC)r in the ,circuit court for the northern district of Florida, and trialfuLd"in.tbllrt court, January 6,1892, the district judge Hon. Charles

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FLORIDA SOUTHERN R. CO. 11. LORING. SWAYNE

933

presiding, which resulted in a verdict and judgment in favor of defendant in error. The defendant in ejectment sued out this writ of error, and has filed an assignment of errors, with 14 separate specifications. The first six relate to the action of the trial judge in the admission of testimony over the objection of plaintiff in error. On the record as brought up to us, it does not appear thatthe action of the trial judge was erroneous in admitting the evidence. The other eight specifications of error relate to charges given and to requested charges refused. "Ve will not consider them separately. 'i'hey may be easily resolved into two: First, that the judge erred in instructing the jury that the plaintiff in ejectment had by the evidence made out a prima facie case of title to the lots in controversy; second, that the defendant in ejectment could not defeat the plaintiff's prima facie evidence of title by showing it bad held seven years' possession of the premises, unless the proof satisfied the jury that the possession had been so held with the knowledge of plaintiff. The plaintiff read ill evidence deeds which made a chain of paper title back for many years, but not to the sovereignty of the soil. The only proof that any of the grantors in these deeds were ever in possession of the premises sued for was certain recitations in Ol1e of the deeds, and evidence that the premises were a part of what was kn()wn as the "Palatka Tract;" and that the corporate limits of the town of Palatka were the boundaries of the Palatka grant, which grant acres, more or less; that plaintiff had possession of the had paid taxes. No length of chain of paper title which does n9t sovereignty of the soil is sufficient of itself to constitute prima facie evidence of title. . There must, in addition, be proof that satisfies the jury .that at leaat one of the grantors in this chain of deeds had been in possession of the premises, wherethe chain does not reach back to the soveretgnty, before the defendant in possession can be required to defend his pcissessi6n: It is certainly the province of the judge to construe given in evidence, and instruct the jury as to their legal effect; and'as to how far parties and privies are bound by the recitals in deeds 01' other writings. If:recitals in ancient instruments' can be used against gers, their probative force is not to be weighed" by the judge merely cause they are apart of a deed, but must, under proper instructions, be submitted, tp the jury. The mere possession of <leeds and the payment of taxes do not, as matter of law, show possession of the land conveyed. Dubois v. Holmes, 20 Fla. 834; 'ryl. Ej. 541; 1 Phil. Ev. 356, and note 3. The laild sued for was two blocks in an incorporated town. It is urged by the counsel for defendant in error in his oral argument that the town is a populous one, with many persons holding possession under grants from plaintiff's grantors. Ii it be conceded that such evidence tends to show that the grantors must have had possession, it cannot withdraw this issue of fact from the jury. We are of opinion that in withdrawing this issue of fact from the jury the learned trial judge erred. The defendant in ejectment proved that it constructed its railcl"oad on the

984 than seveb years 'before the COlllYllenCement of this actiol;l;,'1in<Hhlit during years has been in daily operatioh on said landi"and this was the'lJroof that it offered..Thet,>laintiff thengave'inevidence to th? jury an ord!nanc.e of the cItyof.Plilatka dated March' 13,1880, granhngtothe GamesvIlle, Ocala & Oharlotte Harbor nnilroad" right of way to lay down and establish its tracks, switches, and turn-outs upon and along Main street, and to operate its train upon the same, so long as the complmymay desire." He also offered proof tending to show thai de/cndnnt company Was the same company, with a change'of name. That Main':street extended from Second street on a course nOrth, 80deg. W., and from the river (St. John's) ouHoSecond street its 90ur8e was 2 deg.30 min. further northi that the street is,70 feet wide, and is projected on the map to the city limitR, a mUe or more from the river, but has n6t been opened or defined on the grounli much beyond the built-up portion of the town, which does not extend more than about one quarter of a mile from the river; that the land in question is!within the city limits, and about three quarters of a ,mile, from the populous part of the town. The railroad starts from the St. John's river, at the foot of Main street, and is built in a westerly direction, and its track, roadbed, and ditches cross the blocks sued for throughout the whole width of each, and Irom 50 to 60 feet fi-om the nearest line of Main street. Measuring from the outside edge of one ditch to the outside edge of the other ditch, lining the roadbed, it occupies a width of 24 feet. In this state of the proof the judge in his general charge used this language: "If you ftpd from the testimuny that that railroad was laid down across the plaintiff's lots under 8 claim of right. and that the plaintiff knew it more tb"n seven years beforet-he bringing of this suit, then he cannot recover in this case. If they did notgQ there under a claim of right, and if the plaintiff did not know that tbl'Y were there with the intention of remaining. seven years before the bringlllg of this s,nit, then he is entitled to recover a verdict." And refused to charge, as requested by the defendant, that,"If you find from the evidence that the defendant in the yea1'1882, or more seven years before tht' beginning of this suit, under a claim of right,laid its track on the land in and.· from the time laying the track lIntil the beginning of the suit, visibly.openly, and nutoriollsly used the said track for the dail)' passing and repassing of its trains without the consent of the owners of the land, thl'n.soch use of the land by the railway company has been adverse to the true owner, and the railway company has acquired tbe permanent right to continue Buch lise. Irrespective of the question of title." Counsel for defendant in error contends that the railroad only claimed an .easement over the land, and insists that such easement cannot be acquired the true: owner, unless the latter has knowledge of the claim, and acquiesces in it for the requisite period of time. As to certain easements, such Rslights. authorities cun be found in the English reports for this contentibn of counsel. But it will be found that the doctrine, even in England, is restricted in its application to easements as inHictno irl1l1lediate and palpable injury to the owner':; possession, but, as to' rikhts'of way and of common, the doctrine has not

ktiit sfiel1 ([;:1"1'

EASON

EAST· TENNESSEE, V. &: G.RY. 00.

935

obblined. ,(fa:mpbllll, v. Wilson,. 3 East, 301; Daniel North; 11 East, 374; Smithv.Doe, 6 E. C. L.. In Sargent v. Ballard, 9 Pick. 251, there is in the opi!1ion. of Ju4ge PliTNAM that. extend the doctrine to easements generally, but the question of knowledge of the owner was not involved in that case, and the were evidentl,r n?t considered by him·.. We are, however, of opinion thattbe statute of Florida is controlling in this matter. It provides: "For the purpose of constituting an adverse posspssion by a person claiming title not. founded upon a written instrument, jUdgment, or d"cre£l' land shall be dremed Whave bee? posseslled and occupie!lin the following cases only: First, where it has been orutectpd by a substantial inclosure; or, Becond, w here it bas been usually cultivated or improved." We are of opiij.ion that to add the ,words, "with the knowledge of the owner," would be an amendment of the statute. That whether possession is open, notorious, continuous, exclusive, without leave or favor from the owner of the fee, -in other words, adverse to' him,-is a question for thejury to decide on .the proof, and is in no mallner affected by the owner's ignorance (if he was ignorant) of the adverse holding; and that there was error in the charge given in this case 011 this point" and in refusing to give the requested charge indicated. For the errors herein noted the case is reversed, and remanded to the circuit court, with direction to grant the defendant in ejectment So new trial, and it is so ordered,

EASON fJ. EAST TENNESSEE,

(Ctrcldt

V. & G. Ry. Co.

Oourt

qf AppeaZ8, F1,fth. C(rclI:u, .Tune 13, 1892

No. 24.

RAn.:aOAD COMPANIES-NEGLIGENOE-CHILD ON TRAOK-INSTRUOTIONS.

In an action by a mother against a railroad company, under Laws Ga. 1687, p. 44, for the killing of her minor child, plaintiff's evidence was that, when near the track,. the child was caught up by a slowly moving switching train, and carried a long distance, woile the operators of the train looked on without attempting to render assistance or to stop, which might easily have been done. Defendant's evidence was tllat the child ran upon tile track without warning, and was struck before the train could be stopped, tllough this was done as soon as possible. Tllese theories were pressed by tile respective counsel, and the law applicable thereto explained by them. 'l'he court, after explaining the general pnnciples of law as to negligence and contributory negligence, stated these conflicting theoriee· to the jury, and said that, if defendant's view of the case were true, it would not be liable, but, on plaintiff's theory, it would be necessary for tile jury to believe that knowledge of the. boy'S perilous poshion was brought home to the train employes, or that the warning was such that they could have known the same, and could have etopped the train, and saved the boy's life, in which case the company would be liable. l1eld., tllat this cha,rge was sUfficient, and it was not error to refuse charges requested by plaintiff, stating what was wanton and reckless eonduct,and that the same would render the company liable, notwithstanding prior contribut.ory negligence by the child or its mother.

In Error to the Circuit Court of the United States for the Northern District of Georgia.