Hodges v. Owings

Sloan, J., delivered the opinion of the Court. This is an appeal by a defendant from a judgment in favor of the plaintiff in an action of ejectment, tried before the court sitting as a jury. By deed dated August 16th, 1898, Harry P. Owings and Hattie Owings, his wife, the first of whom was the owner of a tract of land in Calvert County, made a conveyance to the Chesapeake Beach Railway Company “in consideration that the Chesapeake Beach Railway Company do locate its Railroad through, in and upon lands owned by the said party of the first part in the Third District Calvert County, State of Maryland, and in further consideration of the sum of one dollar to him in hand by the said party of the second part paid, the receipt whereof is hereby acknowledged, doth hereby grant and covenant and agree to convey to the said party of the second part, its agents, attorney, or assigns, a strip of land sixty-six feet in width, and such additional width as may be required in the construction and use of said Railroad at cuttings and embankments one-half thereof on each side of the center line of said Railroad as the same shall be finally located, and extending in length as far as the said Railroad • shall pass over said lands, together with the right to divert streams of water for Railroad purposes, and to take and use any stone or timber or other material within the limits of said strip of land as said Railroad is now located. And the ³⁰² said party of the first part doth hereby release to said party of the second part all claim for, and right to damages that may or might accrue to him or his heirs or assigns, for or by reason of the appropriation and occupancy of said strip of land by said party of the second part for use of said Railroad.” The strip of land so generally described in the deed by actual survey contains 3.18 acres, and cuts a strip through the grantor’s land in a northwest-southeast direction 66 feet wide, with some additions for cuts and fills, a distance of 1,878.19 feet.

According to the agreed statement of facts, some time prior to March 7th, 1896, the Washington and Chesapeake Beach Railway Company began the construction of a railroad to extend from the District of Columbia through Prince George’s, Anne Arundel and Calvert Counties to Chesapeake Beach,' Maryland; the project was not completed and through proceedings in a Federal Court its property and rights became vested in one Robert E. Tod. On March 7th, 1896, Robert E. Tod and others organized a corporation under the name of Chesapeake Beach Railway Company, the grantee of the deed involved in this case. The railway was then completed to Chesapeake Beach, running through the Owings land, and was operated continuously from September, 1899, to April 15th, 1935, when operations ceased. In January, 1898, the Chesapeake Beach Railway Company executed a deed of trust to the Continental Trust Company of New York as trustee to secure an issue of bonds of the railway company.

A suit was brought in the District Court of the United States for the District of Maryland, by the New York Trust Company, successor trustee, for a decree to sell the mortgaged property, and on July 19th, 1935, a decree was passed and Charles R. Webber, appointed special master to make the sale, and the property, including all the interest of the railway company in the land described in the declaration, was sold and conveyed to the defendant, William V. Hodges, trustee, who entered into possession of the land ³⁰³ and proceeded to and did remove the ties, rails, and other facilities from the land. During the time of its operation the land was assessed to the railway company, and, except for the period when relieved from taxation by Act of Assembly, the taxes were paid by it. Since his purchase the assessment has been in the name of William V. Hodges, trustee, and the taxes paid by him. Harry P. Owings died February 3rd, 1939, leaving a will whereby he devised the residue of his estate, which included his interest in the land described, to his wife, Hattie E. Owings, who brings this suit.

The plaintiff