The Montgomery advertiser., 1907-04-21
ROAD DOESN'T OWN THE. SOIL Railway Has Only Right
 of Way. so HELD BY SUPREME COURT Original Owners Recover for Con-
 version of Sand. Appellate Tribunal Holds in Cuba Case That Cotton oil and Fertilizer
 Warehouses are Not
 Nuisanees.
 
50 HELD BY SUPREME COURT

The title of a right -of-wat does not enable a railway company to use the soil for sale as commodity, but as a foundation for it's tracks is the opin- ion rendered yesterday by the Supreme Court of Alabama when in the appealed case of the Nashville, Chattanooga and St Louis Railway against Ernest c. karthaus ct all, it affirmed the judg- ment of tffe lower court, the Circuit Court of Madison County.
 Karthaus and others, heirs to an es- tate which had granted right of way to the Nashville, Chattanooga and St. Louis Railway, brought suit against the railway which, it was alleged, sold sand taken from the right-o way, for com- mercial purposes. The complainants claimed that the granting of the right oof-way carried titlesonly to the use of the land so granted as a locality for the tracks of the company. and that no soil could be removed save for the pur- pose of making foundation for the rail- ways tracks. The Supreme Court, af- hrming the judgment of the lower court. held that the right of way was to be used only by and for the rail- way, and the original owner mi ght re- cover for the conversion of the sand.
 In affirming the judgment ofthe Sum- ter County Chancery Court in the cases of Town of Cuba against Missis- sippi CottAn oil Company, the Eagle Cotton oil Company and the Meridian Fertilizer; Factory, the Supreme Court held that the warehouses maintained by the appellees were not nuisances, and - local ordinance so declaring them was invalid.
 In the Dyersburg Bank case, the court reaffirn1s a former decision to the effect that when bank takes over a bill of lading, covering a shipment of goods, along with the draft, fl becomes responsible for the safe de- livery of the goods in such consign- ment. Chief Justice Tyson had the case on demurrer some time ago and held the same as in this instance As a result the State Bankers Associa. ton became very much stirred up fearing that such conditions might make business of this kind too hazard. ous to transact.
 It is held by the court that the town of Bessemer has a right to make | contract with the waterworks conpan, for thirty years and fix maxims rate for that length of time.
 The full list of decisions handed down follows;
 Tyson. c. J.
 Mrs. Sallie H. Smith vs Henry " Davis. appeal from Mobile Circuit Court. reversed and remandedz
 T. w. Farrior ys. W. C. Stagg, ap. peal from Jefferson Chancery Court affirmed.
 I. c. Clecklcr vs. Rufus Morrow, ap- peal from Marshall Circuit Court, re- versed and remanded.
 Haralson, J.
 Southern Railway Company vs State of Alabama. for use Wilcox County appeal from Wilcox County Circuit Court, affirmed
 Samuel c. Lewis vs. Thomas l.. Smith, appeal from Sumter Circuit Court. affirmed.
 Citizens Bank of Dyersburg vs. J. c. Haas and Company, appeal from Mont- gomery Circuit Court, affirmed.
 Marburv Lumber Company, ct al. vs. Georgia Ann Wainwright, appeal from Autauga Chancery Court, affirm ed.
 Sellers, Bullard and Company, vs. w. s. Grace ct al. appeal from Gene va Chancery Court, reversed and rem dered.
 Town of Dothan, vs. M. D. Hornsby, appeal from Houston Circuit Court, ar- firmed
 N C. and St. L. Railway vs. Ernest G, Karthaus ct all, appeal from Madi- son Circuit Court. affirmed.
 Simpson, J.:
 A. c. S R. R. co. vs. J. A. Elliott & son, appeal from Hale Circuit Court affirmed.
 w. w, williams vs. S. J. Vining appeal from Bibb Circuit Court; revers. ed and remanded.
 Town of Eutaw vs. H Botnick, ap- peal from Greene Circuit Court; re- versed and remanded.
 Arbuckle Bros, ct al, vs. Columbia Grocery Co.. ct al. appeal from Henry Chancery Court; reversed and rend- cred.
 I E. Davis vs. Miller Brent Dum- Der Co, appeal from Coffee Circuit Court: affirmed.
 J. D. Blue, ct al, vs. American Soda