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the word "voter" by the Legislature, we think it was used in this sense in the act incorporating the city of Jellico, and that the defendant was a voter in said city within the meaning of that statute at the time of his election, although he had not actually registered so as to be able to participate in that election.

It is not necessary to discuss other ques

tions in the case.

For the reasons stated, the judgment of the trial court will be affirmed.

Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings certiorari. Reversed, and suit dismissed.

Carr & Morris, of Wartburg, for Cincinnati, N. O. & T. P. Ry. Co.

J. M. Davis, of Wartburg, Chas. H. Davis, of Oneida, and W. Y. Boswell and D. W. Byrge, both of Oakdale, for Sharp.

MCKINNEY, J. This is a suit for damages for personal injuries. A verdict of $1,000 was rendered by the jury, upon which judgment was entered, and on appeal this judgment was affirmed by the Court of Civil Ap

CINCINNATI, N. O. & T. P. RY. CO. v. peals, and the case has been brought here

SHARP.

(Supreme Court of Tennessee. Nov. 23, 1918.)

1. EASEMENTS 10(3)-WAYS-OVER RAILROAD RIGHT of Way.

Whether a railroad company acquired its right of way by condemnation or deed is no ground for distinction in determining whether a prescriptive way can be acquired over such right of way, for, regardless of the mode of acquisition, a railroad company, under Shannon's Code, § 2413, holds property only for railroad purposes.

2. EASEMENTS

by certiorari.

The residence of the defendant in error was in about 10 feet of the right of way of the railroad operated by the plaintiff in error, and was located in a deep hollow in the town of Oakdale, and went by the name of the Southern Hotel. This building was erected about the year 1891, and for some time thereafter was used as a saloon, and later as a negro tenement, and has maintained somewhat of an unsavory reputation.

In getting from said building to the pub10(3)-RIGHTS OF WAY-lic road, the defendant in error traveled a PRESCRIPTIVE EASEMENTS. winding path across the right of way of said railroad company. Said path was very steep and rough. This building has been owned by one James Wilson for about 7

As a railroad holds its right of way for public purposes, a prescriptive way over such right of way cannot be acquired.

3. EASEMENTS 8(4)-PRESCRIPTIVE WAYS-years, and the defendant in error had lived PROPERTY IN POSSESSION OF LESSEE.

Where a railroad company was in possession of a right of way as lessee, no prescriptive way over such right of way could be acquired, for the law will not presume a grant from the apparent acquiescence of one who could not have made it.

4. EASEMENTS 9(1)-RIGHT OF WAY-PERMISSIVE USE.

Where there was nothing to show that persons who used a path over a railroad right of way for about 25 years, or the public generally, did so under any claim of right adverse to the owners of the right of way, no prescriptive easement resulted.

in said house for something over a year prior to the time of the accident complained of. Since the erection of said building those occupying the building, as well as people going to and from same, have used this pathway across the railroad right of way, and this has been something like 25 years.

At the time of the injury the defendant in error was employed as a house servant by a Mrs. Waddell, receiving as wages $2.50 per week and her meals. She left her home early every morning and usually returned after night. There was another way she could have traveled without crossing said right of way, but it was about 200 steps

5. APPEAL AND ERROR 172(1)—CHANGE OF further. -THEORY ON APPEAL.

Where plaintiff was injured when she stumbled over lumber placed on a railroad right of way in such a manner that it obstructed an established path thercon, held that, where plaintiff relied on a prescriptive way, she could not on appeal change to the theory that a landowner, who expressly or by implication invites the public to come upon his land or use it as a pathway, cannot permit a snare or danger to exist thereon which results in injury to the person who accepts the invitation.

In the spring of 1916 the railroad company began the erection of a large water tank on its right of way and near to the residence of the defendant in error. For several days prior to the accident it had been unloading lumber and gravel on its right of way, in front of the residence of the defendant in error, but not upon or across said pathway; said lumber, gravel, and other material to be used in the erection of said water tank.

On the morning of the 3d day of May, 1916, defendant in error went to her work Certiorari to Court of Civil Appeals. as usual, and there was no obstruction upon Suit by Minnie Sharp against the Cincin- or across said path at that time. When she nati, New Orleans & Texas Pacific Railway returned that night it was very dark, so For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

much so that she could scarcely see anything | the railroad right of way; and in those cases at all, and in passing along said pathway she holding such right can be acquired, the stumbled over some lumber that had been courts say that such use will be held to be placed across said pathway during the day, permissive, and not adverse, in the absence and was precipitated down the steep em- of strong evidence to the contrary. The bankment, in front of her house, and over great weight of authority seems to be opwhich said pathway extends, resulting in posed to such right, and such has been the serious injury, to recover damages for which holding of our courts. Railroad Co. v. Fort, this action was brought. The declaration 3 Tenn. Civ. App. 723; Magill v. Railroad, contains the following averment, upon which 2 Tenn. Civ. App. 656; Railroad Co. v. Telethe right to recover in this case is predi- graph Co., 101 Tenn. 62, 46 S. W. 571, 41 cated: L. R. A. 403.

"The plaintiff alleges and avers that the roads which lead to and from her residence are both public and private roads leading to and from her residence; that said roads have been used by the public generally for a period of more than 20 years, and that the defendant knew that said roads were being used by the public generally, and by those who have from time to time occupied the property known as the Southern Hotel; and plaintiff alleges and avers that the defendant has for more than 20 years acquiesced in the public using said road as a public road, and in the use of said road by the people who have occupied said house known as the Southern Hotel; said occupants using said roads in order to gain ingress and egress to and from said property."

The theory of the plaintiff below was that she and the public generally had acquired a prescriptive right in this pathway, and that the defendant, by obstructing same, became liable for the injury resulting therefrom.

[1] The circuit judge charged the jury that the public could not acquire any prescriptive right in such right of way, where the railroad company acquired same by grant or by condemnation proceedings, but that the public could acquire such right when the property had been acquired by warranty deed conveying the fee, and where the provision of the instrument did not limit the estate transferred to railroad purposes.

The attorneys have not cited any authority in support of this holding of the learned circuit judge, and we have been unable, either upon principle or authority, to sustain such a distinction. Railroads in this state cannot hold real property for other than railroad

purposes.

Shannon's Code, § 2413, provides that railroads shall have power to purchase and hold, or to receive by gift, or to acquire by condemnation, real estate for corporation purposes; So that, regardless of the manner in which it is acquired, the railroad only holds it for Failroad purposes, and in the numerous authorities which we have examined we do not find a single case where such a distinction is drawn, as was done by the learned circuit Judge in this case.

[2] There seem to be two lines of authorities on this question, one holding that such prescriptive right can be acquired, and the other that such right cannot be acquired, in

The principle upon which the courts hold that such right cannot be acquired in the right of way of the railroad is stated in L. & N. Railroad Co. v. Hagan, 141 Ky. 20, 131 S. W. 1018, 35 L. R. A. (N. S.) 189, which was a case where a passway was claimed along and across the right of way, and had been used without question for 30 or 35 years. The court, denying the right to such passway, said:

"There is necessarily a distinction between a railroad right of way and the property of a private person as to the presumption of a grant. A private person holds his land for his private purposes. The railroad holds its right of way for public purposes. When a railroad has taken a right of way, either by condemnation or by purchase, on the ground that it is necessary for the business of the road, it is not presumed that it has granted to others property that was required for public purposes. It is a matter of common knowledge that in this country persons walk over and along railroad tracks at many long as it does not interfere with their business. points, and that the railroads permit this so But this merely permissive use of their rights of way and tracks gives such persons no legal right to a passway over them."

In a note to this case the authorities on this question are fully annotated. It will be noticed that in this case no distinction is made between property purchased and property condemned by the railroad.

The latest case we have found on this

question is that of L. & N. Railroad Co. v. Childers, 155 Ky. 652, 160 S. W. 260, 48 L. R. A. (N. S.) 903, and note. There the public had used a pathway across the railroad right of way for more than 30 years in going to

and from a hotel on the opposite side of the track. It was held that there was no prescriptive right. The record does not show what kind of a title the railroad had to the property.

[3] However, the distinction made by the

learned circuit judge does not arise in this case, for the reason that the plaintiff in error does not own the fee in this right of way, and the court was in error in so instructing the jury. The deed referred to was executed

to the trustees of the Cincinnati Southern

Railway, and the agreement of the parties, found on page 52 of the transcript, shows that the plaintiff in error is the lessee of the Cincinnati Southern Railway, and, since said

lease is not made a part of the record, we| Clapp v. La Grill, 103 Tenn. 170, 52 S. W. do not know what interest plaintiff in error 135, as follows: acquired under said lease, but we do know that it could not be a fee-simple estate.

In McKinney v. Duncan, 121 Tenn. 269, 118 S. W. 684, the court quotes approvingly from Sanders v. Simpson, 97 Tenn. 385, 37 S. W. 195, as follows:

"To give user this effect [prescriptive right] it must be uninterrupted in the land of another by the acquiescence of the owner for a period of at least 20 years under an adverse claim of right, while all persons concerned in the estate in or out of which it is derived are free from disability to resist it, and are seized of the same in fee and in possession during the requisite period. Where all these circumstances concur, it raises prima facie evidence of a right to such easement acquired by a grant which is now lost. Thus there may be two distinct estates, and the owner of the one may have claimed and exercised the right of passing over the other for a period of time ordinarily requisite to give a right of way, but would fail thereby to create a presumption of a grant, if the servient estate during that period, or any considerable part of it, had belonged to a minor, or was in possession of a lessee, or one under a disability, like a married woman. The law would never presume a grant from the apparent acquiescence of one who could not have made it, or had no right to oppose the user from which it was sought to be inferred."

[4] However, treating the plaintiff in error as an individual, we do not find any evidence in the record to support the claim of the defendant in error, for there is absolute ly nothing to show that the use of this pathway, either by defendant in error, or by any

one else, or by the public generally, was under any claim of right adverse to the owners of the property. We simply have a record showing that this pathway has been used for about 25 years by people in going to and from said Southern Hotel building, and this is not sufficient under our authorities to even establish a prescriptive right as between private property holders. Sharp v. Mynatt, 1 Lea, 375; McKinney v. Duncan, 121 Tenn. 265, 118 S. W. 683.

We are therefore of the opinion that no prescriptive right had been acquired by the defendant in error, or by the public in general, in this pathway, and the circuit judge should have sustained the motion of the

plaintiff in error for a directed verdict. The defendant in error was a mere licensee, and the plaintiff in error was under no obligation to keep said pathway unobstructed.

"We think it clear that when the owner of land, expressly or by implication, invites the public, or third person, to come upon his land or use it as a passway, he cannot permit a snare or danger to exist thereon which results in injury to the person who accepts the invitation, and who, at the time, is exercising ordinary care, without being answerable for the injury."

We do not think the principle of the "trap" doctrine is involved in this case. No such issue was tendered in the pleadings, or raised on the trial in the lower court, or suggested by any of the assignments of error, or

even hinted at in the brief of the able attorneys representing the defendant in error.

The "trap" doctrine theory, as will be seen from a perusal of the case of Clapp v. La Grill, supra, is based upon the use of the property by invitation of the owner, while the doctrine of prescriptive right is based upon a right or use adverse to the owner. Connor v. Frierson, 98 Tenn. 183, 38 S. W. 1031; 14 Cyc. 1150. And in order to create a prescriptive right or easement the use must not be permissive. 14 Cyc. 1151.

So that the two doctrines are absolutely inconsistent and cannot stand together. The defendant in error alleged in her declaration that she used this pathway under a claim of right and adversely to the plaintiff in error. Therefore she cannot come now and say that she was an invitee, and, for that reason, the plaintiff in error owed her and the public in general the duty of keeping said pathway unobstructed.

We are therefore of the opinion that the judgment of the Court of Civil Appeals and of the circuit court is erroneous, the same is reversed, and the suit of the defendant in error is dismissed, and she will pay the costs accrued in the several courts.

HUNTER v. SWADLEY et al.

(Supreme Court of Tennessee. Nov. 30, 1918.) 1. RELIGIOUS SOCIETIES 31(3)-UNINCORPORATED RELIGIOUS ASSOCIATION-ACTIONS AGAINST.

should plead, and be impleaded through its trusAn unincorporated religious association tees, although it is doubtless true that, where the interests of the trustees are adverse to the association, the association may be impleaded by naming its members. 2. JUDGMENT 675(1)

[5] In disposing of the case in the Court of Civil Appeals, that court held that it was PARTIES 94(2) not necessary for it to decide the question -CONCLUSIVENESS-WAIVER OF DEFECTS. of prescriptive right, for the reason that the Where a bill against an unincorporated reprinciple of the “trap" doctrine applied, and ligious association named as defendants trustees justified the recovery adjudged in the circuit who had gone out of office shortly before, but court. In support of this doctrine the Court the association defended the suit employing of Civil Appeals quotes from the case of counsel, held, that the judgment was binding

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

against the association; the case being one of | C. N. Brown & Co., for the use of complainmisnomer which was waived unless raised by ant Hunter, against the Missionary Baptist plea in abatement.

3. APPEAL AND ERROR -LAW OF CASE.

Church, or First Baptist Church, an unincor1099(3)-REVIEW porated religious association, formerly existing at Johnson City, hereafter called the "old church."

A former judgment against an unincorporated religious association held on subsequent appeal conclusive as to the authority of the association to incur the indebtedness sued for.

4. RELIGIOUS SOCIETIES 29-UNINCORPO-
BATED SOCIETIES
INDEBT-
EDNESS.

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PROPERTY

Where an unincorporated religious association sold its property and delivered the proceeds to another religious society which invested the same in new property, held, that one having a claim against the association, while not entitled to enforce it against the property, might reach the proceeds of the property in the hands of the new society.

INCORPORA

The chancellor was of opinion that complainant was not entitled to satisfy said judgment out of the assets of the new church. The Court of Civil Appeals was of contrary opinion, reversed the decree of the chancellor, and directed the subjection of the property of the new church to said judgment. Complainant attached the property of the latter organization.

The complainant appears to have once been affiliated with the old church, and this controversy has engendered much feeling. The case has been prepared and presented elaborately, with learning and ability quite disproportionate to the amount involved.

Numerous questions are raised, and the case will be more readily understood by stating a portion of the facts in connection with the disposition of each point.

5. RELIGIOUS SOCIETIES 4 TION-ESSENTIALS. Under General Incorporation Act of 1875 (Thomp. Shan. Code, § 2026), declaring that, after the certificate of the Secretary of State and the fac simile of the great seal shall be registered in the register's office of the county Two general questions are to be determinwherein the principal office of the company is ed: First, whether complainant obtained a situated, the formation of the company as a valid judgment against the old Baptist body politic shall be complete, a religious socie-church; and, second, whether the property ty which attempted to incorporate is not a corporation until the certificate is recorded in the of the new Baptist church can be taken for office of the register, and, until such recordation, the payment of this judgment. it is not a de facto corporation and may be treated as an unincorporated association by one who did not recognize its corporate char

acter.

6. MORTGAGES RIGHT TO.

151(4)

PRIORITY

The original bill of C. N. Brown & Co., for the use of this complainant, was filed against R. R. Bayless, George P. Crouch, and T. G. Galloway, as trustees of the old church, and against J. W. Houtz and George P. Crouch, as a sales committee of that church. It averWhere plaintiff was entitled to subject to red liability on the part of the church to the payment of his debt, incurred by the origi- complainants therein for services as real esnal church, funds which a second church re- tate agents in an effort to sell certain propceived from the first, held that, where the sec-erty belonging to the church. An answer ond church did not complete its corporate orwas filed to this bill, many defenses interposganization until after complainant filed his bill, complainant was entitled to satisfaction out of ed, and proof taken. The bill was dismissed its property prior to mortgages executed by the by the chancellor, but his decree was reverssecond church as a corporation, though suched by the Court of Civil Appeals, and the demortgages were valid as against the church; he having fixed a prior lien by attachment.

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cree of the Court of Civil Appeals was affirmed by this court, and on September 26, 1912, a decree was rendered in this court in favor of the complainants against R. A. Bayless, George P. Crouch, and T. G. Galloway, as trustees, and J. W. Houtz and George P. Crouch, as a sales committee of said church, for the sum of $587.80 and costs.

[1] It is first contended by the defendants herein that this was not a valid judgment against the old church. It is said that two of the parties named as trustees of said church were not trustees thereof when the suit was brought, and it is furthermore argued that it is necessary to make the members of a voluntary association defendants in order to secure a judgment binding against the property of such an association.

We have recently had occasion to consider

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the character of an unincorporated religious a suing of a defendant by a wrong name. association. We have held that such an as- Such a matter is one of abatement, only, and, sociation, under the statutes, is a legal en- if the defendant misnamed makes actual aptity for certain purposes and within a limit- | pearance and defends on the merits, he caned sphere enjoys quasi corporate existence. not later take advantage of the misnomer. We have said such an association might sue and the judgment, though rendered accordand be sued in respect to the few contracts ing to the style of the suit, is binding against it was authorized to make, and that "such the real defendant. an association should plead and be impleaded through its trustees." Wilson v. M. E. Zion Church, 138 Tenn. 398, 198 S. W. 244.

It is doubtless true, where the interests of the trustees are adverse to those of the association, or perhaps under other circumstances, the association may be impleaded by naming its members as defendants. Headrick v. Ruble, 78 Tenn. (10 Lea) 15. But it can be reached through its trustees.

[2] We do not think that jurisdiction of the old church was acquired by naming as parties defendant Houtz and Crouch as a sales committee.

Prior to the filing of the original suit, Bayless, Crouch, and Galloway were the trustees of the old church. It appears, however, from the minutes of that organization, that Crouch and Bayless resigned October 6, 1909. The original bill was filed November 4, 1909. So, at the time the first suit was brought, Crouch and Bayless were not actually trustees.

Although the church was not, therefore, properly impleaded in such a way as to bind its property, had a suitable defense been interposed, we think that the subsequent procedure of the church precluded any objections to the judgment against it on this ac

count.

Beyond all question, the church treated this suit as one against it and as an effort to hold its property. While the authority of the trustees and the sales committee to bind the church for this agent's commission was denied, nevertheless the church answered the original bill through these very defendants, named as its representatives.

On December 1st, at a congregational meeting, the following resolution was passed:

"Moved and carried that the following recommendations from the board of deacons be adopted, viz.:

"That, whereas, C. N. Brown & Co., by J. W. Hunter, has filed a bill in court in an endeavor to extort the sum of $500.00 from the church, on the claim of commission:

"We, therefore, recommend that the officers of the church be empowered to employ counsel to defend said cause.'

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"Suing a defendant by a wrong name is a matter of abatement only and will not avoid a judgment against him if he has been actually served. An actual appearance is the equivalent of personal service within the meaning of this rule. Hence, where a party is sued by a wrong name and he appears to the suit and does not plead rendered against him in the erroneous name, the misnomer in abatement, and judgment is execution may be issued upon it in that name and levied upon the property and effects of the real defendant. Even a corporation cannot take advantage of its being incorrectly named as a party defendant in an action otherwise than by plea in abatement. Failing to make such a because of a misnomer." 15 R. C. L. p. 599; plea, a judgment against it cannot be avoided Clark & Marshall on Corporations, vol. 1, p. 154; Black on Judgments, § 213.

It follows, for the reasons stated, that the original judgment against the narties named as trustees of the First Baptist Church, or Missionary Baptist Church, bound the prop erty of that organization, inasmuch as it entered appearance, waived the misnomer, and defended on the merits.

[3] All questions as to the authority of this organization to incur such an indebtedness, and its liability for said indebtedness, are foreclosed by the decree in the former case, inasmuch as the old church was before the court, and these questions there adjudicated. We will not go into such matters again.

[4] During the pendency of this suit against the old church, the Central Baptist Church, or the new church, was organized, but not at first incorporated. It was composed, principally, of members of the old church and of the members of another church, known as the Roan Street Baptist Church. The old church voluntarily turned over all of its property to the trustees of the new one, and the latter sold this property to innocent purchasers for value, for about $13,000. This sum was invested by the new church in other property.

The complainant is not entitled to follow the identical property, or real estate, of the old church in the hands of these innocent purchasers. Complainant is, however, entitled to reach the proceeds of this property in the hands of the new church, the donee of said voluntary conveyance. Solinsky v. Lincoln Savings Bank, 85 Tenn. 368, 4 S. W. 836; Williamson v. Williams, 79 Tenn. (11 Lea) 355.

In pursuance of this resolution, counsel were employed, and the suit was vigorously defended, and proof herein shows that this defense was made by the church. As a matter of fact, the trustees of the old church, at the time the original suit was brought, were In the fall of 1912, the new church endeavGalloway, Vines, and Peoples. The complain- ored to incorporate under the name of the ants named Galloway, Crouch, and Bayless. "Central Baptist Church, of Johnson City." The case then is merely one of misnomer-Application was made for a charter, other

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