The Montgomery advertiser., 1901-06-30
Opinion by Mcclellan, c. ).
SOUTHERN RAILWAY CO.,, V
 GONNA N

| SOUTHERN RAILWAY CO.,, V. | CONAN.
 Bill in euQity to have deed conveying right of way over homestead de- clared null and void, and for the assessment of damages for the use of such right of way.-Appeal from the Chancery Court of Etowah. l. Bill to recover compensation for taking and using lands as right of way; judgment in ejectment suit no
 bar to maintenance thereof.-An action of eJectment is not conclusive of the equitable rights and relief of the
 parties growing out of the subect mat | ter of an ejectment suit and a judg- ment in favor of the defendant in an action of ejectment against a railroad company for a part of its right of way,
 in which plaintiff claims that the deed by which he attempted to convey to defendant the strip of land sued for is invalid, is no bar to the maintenance by such plaintiff of a bill in equity against said railroad company 10 re- cover compensation for the taking and using plaintiffs lands as a right of way.
 2. Some: administrator proper party
 on revivor.-When the owner, who is
 married man, files bill in equity to recover compensation from a railroad
 company for damages for using part of his homestead as a right of way, upon the death of such owner pending the litigation, the suit should be re- vived in the name of his administrator. 3. Same; same: sufficiency of de- murrer-In such a case, where | bill
 of revivor is amended so as 70 make the administrator the only party com plaintart. demurrer upon the ground that the heirs of the original com plaint "are not made parties to the suit" is not sufficient to raise tEe Ques- ton that the said heirs were proper UT necessary parties defendant to said bill {. Same; finding of register ss to
 lands taken for right of way-Oa a bill, filed seeking to recover compensa-
 tion from a railroad company for the
 use of the complaints lands as q right
 of way without having properly &C., quired them. where it is averred in the bill that the defendant had .aka.1 and was in possession of a strip of ,and one hundred feet wide, being fifty feet on either side of the center of the
 track. and the answer admits that the
 defendant built its road along said
 right of way. and had been in possess
 sicn of said strip of land, and that the
 complainant was deprived of the use
 and occupation thereof, the finding by
 the register, on reference. that the .strip
 of land taken hy the defendant for the
 right of way was fifty feet on either
 side from the center of the track, is
 not erroneous because it is shown by
 the evidence that the complaint culti-
 vated the land up to or near the road
 bed; since. unless tho cultivation of the land was .un0er claim of adverse right,
 it will be presumed to have been pe--
 missive, and not inconsistent with the
 defendants possession and use of its
 right of way to the extent of the en-
 tire one hundred feet.
 5. LiabaIity of railroad for right of
 way: measure of dama ages-Where a
 railroad company has entered upon the lands of another and constructed its
 road through them without the owners
 consent and without condemnation pro-
 ceedings. the measure of omoensation to which the owner Is entitled is the
 value of the land when taken by the
 railroad company. and the injury or
 dilMinutioh in value caused to Inc con-
 tiguous lands, together with interest on
 uaid sums thus ascertained. from the
 date of the taking.
 Affirmed.
 Opinion by Haralosn, J.