This case has been heretofore in this court, and the more important questions raised by the controversy were then decided. — Tennessee and Coosa Rivers Railroad Co. v. East Ala. Railway Co., 15 Ala. 516. We then decided, that the plaintiff had established its right to recover so much of the railroad, right of way and superstructure, as it had located, cleared and graded, and that the East Alabama Railway Company had shown no valid defense to such claim. We held that, by the purchase from the Tennessee and Coosa Rivers Railroad Company, of its track or road-bed, together with the right of way, grading, trestles, masonry work, culverting work, and property on said line so located, the East Alabama and Cincinnati Railroad Company, acquiring its rights and possession under such purchase, was estopped from denying or disputing the title under which it had acquired and held possession. This estoppel applied, as well to the right of way, as to the graded road-bed. It did not lie in the mouth of the purchasing company to assert, what the owners of the freehold failed to assert, namely, that in locating its road, clearing a right of way, and grading the track, the Tennessee and Coosa Rivers Railroad Company was a naked trespasser without right. The owners of the freehold raising no objection, no other person could. We held further, that neither the bankruptcy of the East Alabama and Cincinnati Railroad Company, the sale of the road under the bankruptcy proceeding, nor the foreclosure and sale of the property under the mortgage to Barnes and Clews, impaired plaintiff’s right of recovery in the ejectment suit. We will not re-examine these questions.
The present suit was tried on a complaint which originally claimed the entire railroad from Guntersville to Gadsden, and sought to recover it. It was finally narrowed down, until the claim was for that part of “the railroad from Gadsden to Attalla,” in. Etowah county, shown to be about five miles in length. In the first trial it was shown that, about the years *2811854-5, the Tennessee and Coosa Eivers Eailroad Company, under its act of incorporation, surveyed, located, cleared and graded its line of railway, from a point where Attalla now stands, to a point near "Wragg’s mill, ending in a cut of some seven or eight feet, known as “Christopher’s Cut,” and near the then corporate limits of Gadsden. The proof was, that this part of the railroad remained in this condition, without further work upon it, until the East Alabama and Cincinnati Eailroad Company took possession of it, after the contract of purchase was concluded, July 12, 1871. After that time the purchasing company took possession' of such graded road between those points, and completed its construction. The rulings of this court were based on the state of the road, as above set forth. No ruling was invoked, or made, except on questions relating to that part of the road which lay between “Christopher’s Out” and the place where Attalla stands, each portion of which was in substantially the same partially completed condition. The present record raises a question not presented on that appeal.
Between. the terminus of the grading at “ Christopher’s Cut” and the Coosa river, is a gap of near a mile, on which no work had been done 'by the Tennessee and Coosa Eivers Eailroad Company, so as to change the surface, or give notice where the line would run. The timber was not cleared off, nor were there any embankments or excavations made. There is some testimony that the engineer, while locating the road in 1854-5, surveyed three lines from “ Christopher’s Cut ” to the river, and set up stakes on each line of survey. There is also oral testimony, by persons who were near and about him, that he expressed a preference and selection of the line on which the road was subsequently built, as we shall hereafter show. The three surveys were left with set stakes, and nothing else, to mark their locality; and such stakes disappeared long before 1869. No report of any selection is shown to have been made by the engineer, nor is any action of the board of directors produced, showing a location of this part of the road. Further than the evidence furnished by these surveys, there is no proof of any possession of this part of the line by the Tennessee and Coosa Eivers Eailroad Company. .There is, also, imperfection and uncertainty in the attempted proof that this company had obtained the right of way beyond “ Christopher’s Cut.” No paper title is shown, and there is no evidence that any ever was given. There is some oral testimony on the question, but it is indeterminate; and it is left in doubt, whether this relates to the whole, or to only a part of the line beyond “ Christopher’s Cut.” Eight of way for a railroad is an easement — an interest in the freehold — which can only *282exist in grant, or by prescription. There are no facts shown on which to base any right to this part of the line in the Tennessee and Coosa Rivers Railroad Company, by mere prescription ; and there is no proof that such right was ever acquired by grant or conveyance, so as to take it without the operation of the statute of frauds. — Bro. Stat. Frauds, § 232; Wash-burn on Easements, 3 ed., 38 et seq.\ Code of 1876, § 2121.
It is contended for appellee, that the East Alabama and Cincinnati Railroad Company acquired its right, and. went into possession, under its contract of purchase of July 12,1871, and, therefore, is estopped from disputing the right and title of the Tennessee and Coosa Rivers Railroad Company, its vendor; and, that corporation being estopped, the present appellant, the East Alabama Railway Company, having acquired all the title it has derivatively from that corporation, is equally estopped. On the former appeal in this cause, we held such was the true rule, to the extent the facts made it applicable. It is undoubtedly the rule as to all that part of the track and right of way, which had been graded and cleared by the plaintiff corporation, before the agreement of sale was entered into, July 12, 1871. Such was the proof, on the former trial, of the status of the work when the contract of sale was entered into. Such was the proof, on the last trial, of that part of the road which lay between Attalla and “ Christopher’s Cut,” near the corporate limits of Gadsden, as they were defined when the survey was made. Of this part only did the appellee have possession, with visible evidences of ownership, and of this part only did the East Alabama and Cincinnati Railroad Company acquire possession after the contract of purchase was entered into.
The East Alabama and Cincinnati Railroad Company had also a charter of incorporation, under which it was authorized to construct a railroad from Eufaula, through Opelika and Oxford, to Guntersville, on the Tennessee River, the northern terminus of the chartered road of the Tennessee and Coosa Rivers Railroad Company. Gadsden was in the line of its route; and on this account it desired to make, and did make, the contract of purchase, out of which this litigation grew. The intention was to utilize the survey and grading of the shorter line from Gadsden to Guntersville, in the construction of the defendant’s longer line of road. • As we have shown, the contract of purchase was entered iuto July 12, 1871. Before that time, the East Alabama and Cincinnati Railroad Company had issued its first-mortgage, commercial coupon bonds, to be indorsed by the State under the then existing statutes, to aid in the construction of its railroad. It had also executed its mortgage to trustees to secure the payment of *283said bonds — the mortgage bearing date July 1, 1870, and conveying and mortgaging, for such purpose, “ the franchises, road, road-bed, right of way, and all of the real and personal property now or hereafter belonging to the company.” The said East Alabama and Cincinnati Railroad Company commenced. surveying and locating its line of railroad, from the Coosa River at Gadsden, to Attalla, about May, 1870, and completed the grading from the river to “ Christopher’s Cut,” about. October, 1870.. It also procured the written conveyance' of -the right of way from some of the owners, over whose lands the line of the road was selected, in the month of June, 1870, before the said mortgage was executed to secure the bondholders. The entire work of surveying, locating and grading the road from the river to “ Ghristopher’s Cut” was done by'the East Alabama and Cincinnati Railroad Company, and was completed before it negotiated the purchase from the Tennessee and Coosa Rivers Railroad Company. The mortgage executed July 1, 1870, to secure the bonds, evidently embraced and conveyed this section of the railroad line. Meyer v. Johnston, 64 Ala. 603. To test this, let us suppose the purchase of one road by the other had never been agreed on, and a question of paramount right had. arisen between the bondholders, or the trustees, on the one side, and the Tennessee and Coosa Rivers Railroad Company on the other. On the facts stated above, no one could question the superior right of the bondholders secured by the mortgage. And if it be true, as contended for by appellee (we need not, and do not, admit its correctness), that the appellant railroad company acknowledged appellee’s right to the entire line extending to the river, by contracting to purchase it July 12, 1871, this can not impair nor weaken the already secured rights of the mortgagees, who were not parties to such contract, however much it might conclude the purchasing corporation.
We have been referred to several authorities, which, it is contended, sustain the argument made by appellee. None of them are opposed to the views above expressed. — See Morris & Essex R. R. Co. v. Blair, 1 Stockt. Ch. 635 ; Mason v. B. & N. R. R. Co., 35 Barb. 373 ; A. T. & Sante Fe R. R. Co. v. Mecklim, 23 Kans. 167; Van Wyck v. Nevals, 106 U. S. 360 ; Camp v. Camp, 13 Amer. Dec. 60, and note.
Special proof that the plaintiff corporation had acquired the right of way over the lands between Attalla and “ Christopher’s Out,” was wholly unnecessary. The defendant was estopped by its contract of purchase, and possession thereunder, from raising that question. We deem it unnecessary to notice any other exception, or assignment of error, as we *284believe what is said above will enable the Circuit Court to rule correctly on another trial.
Reversed and remanded.'