This is a statutory action of ejectment to recover possession of certain lands described in the complaint. A number of special pleas were filed by defendant in addition to the plea of not guilty to which demurrers were sustained. The record shows that the matters set up as a defense in these special pleas were offered in evidence by defendant under the plea of “not guilty,” and if they constitute a good defense could have been interposed.—Newson v. Guy, 109 Ala. 305.
The plaintiffs made out & prima facie case for recovery by proof of possessiqn of the lands under claim of ownership.when the defendant entered thereon, and are entitled to recover unless the defendant shows a superior title.—3 Brick. Dig. p. 325; 1 Brick. Dig. p. 637.
The defendant claimed the right to the possession of the lands in controversy under comdemnation proceedings, instituted by it against these plaintiffs in the court of probate of the county of Madison. Its right to possession is determinable upon the validity of that proceeding. If void, these plaintiffs can maintain this action. — Tenn. & Coosa R. R. Co. v. East Ala. R’y Co., 75 Ala. 516, and authorities cited; Hooper v. Columbus & Western R’y Co., 78 Ala. 213.
The land was a lot or parcel, triangular in shape, containing one and five one-hundredths acres in the northwest quarter of section nine, township six, range one east. No part of this quarter section was described or mentioned in the application for condemnation. The application offered in evidence was as follows : “Your orator, the Nashville, Chattanooga & St. Louis Railway, a corporation duly chartered, under the laws of the State of Tennessee, with its.principal office in the city of Nashville, State of Tennessee, respectfully represents, that under and by virtue of authority granted by the laws of the State of Alabama and State of Tennessee, it proposes to extend its line of road in the county of Madison, *607from the city of Huntsville in said county, to a point at or near Hobbs’ Island on the Tennessee river, and in order to do so it became necessary to acquire a right of way, consisting of one hundred feet from the center of the line of location of said road on either side thereof, through the following described real estate, to-wit: also, terminal facilities. That tract or parcel of land lying and being in the county of Madison and State of Alabama, and known and described as part of the east half of the northwest quarter of section four, township six, range one east. Said real estate is owned jointly by Willie M. Hobbs and Isham D. Hobbs,• both of whom are infants, and William F. Gardner is their guardian. Said Willie M. Hobbs and Isham D. Hobbs and their guardian, William F. Gardner, residein Madison county, Alabama. The premises considered, your orator respectfully asks your honorable court to appoint three citizens, as provided by law, to assess and ascertain the damages to which the owners of said real estate are entitled for said right of way, and that due and legal notice be given to said William F. Gardner, as such guardian, of the time of the filing of this application, and the time appointed for the hearing thereof, and that your honorable court take such notice and further proceedings as is by law required.” The report of the commissioners appointed, on the hearing of this application, to assess the damages, though it recited that they were appointed to assess the damages and compensation for the condemnation of the right of way and terminal facilities through the land as described in the application, yet described the land sued for in the assessment of damages ; and the order of condemnation entered on this report purported to condemn the land sued for, as well as that mentioned in the application. The claim of the defendant under these proceedings’ presents the question of the validity of the proceedings so far as they purport to affect land other than that mentioned and described in the application for condemnation. :
In the proceedings in question, the court of probate exercised a special statutory jurisdiction. The statute confers the power and jurisdiction,: and prescribes the mode of calling it into operation. “Any corporation organized under the laws of this State, or any person, *608or association of persons, proposing to take lan,ds, or to ■acquire an interest, or easement therein, for any uses for which private property may be taken, may, if there be no other mode of proceeding prescribed bylaw,, apply to the court of probate of the county in which such lands, or a material portion thereof, may be situate, for an order of condemnation thereof to such uses.” —Code of 18-86, § 3207; Code of 1896, § 1712. By the next succeeding section, the application is required to be in writing, and further specifications as to its contents are prescribed. The application provided for by the section quoted, is for an order of condemnation of the land proposed to be taken, or of the interest or easement therein ■proposed to be acquired. It is an essential function of such an application, to point out the property upon which the desired order of condemnation is to operate. The la,nd,- or the interest or easement in land, described in the application, is the subject matter brought before the court, for the exercise upon it of the power of condemnation. The object of the proceeding is to effect an involuntary transfer of land, or of an interest in land. London v. Sample Lumber Co., 91 Ala. 606. As said in the opinion delivered in the case just cited, “when the property to be taken is selected and determined by the petitioner, the court having no authority to fix or change .the location, the general rule is, that the application must describe the property with sufficient precision to enable a skillful person to locate it on the land.” “Notice'of the application” is required to be served on the land, owner. — Code of 1886, § 3209 ; Code of 1896, § 1714. It is the application which the land owner is afforded an opportunity to contest. “The court must hear all the allegations of the application, and objections which may be filed to the granting thereof, and any legal evidence touching the same, and shall make an order granting or refusing the application.”—Code of 1886, § 3211, as amended by the act approved February 18, 1891 (Acts of 1890-91, 1131); Code of 1896, § 1717. And the extent of the operation of the order of condemnation authorized to be made, is to “vest in the applicant the interest or easement in the lands, proposed to be acquired, for the uses and purposes stated in the applica*609tion, but for no other uses or purposes.” —Code of 1886, § 3216, as amended, (Acts of 1890-.91, p. 1131) ; Code of 1896, § 1721. It is clear from these statutory provisions., that the application marks the limits and boundaries, as to subject matter, of the jurisdiction authorized to be exercised, and that land not mentioned in the application, or any amendment thereof, is left beyond the reach of the order of condemnation. An order of condemnation is a mere nullity .so far as it purports to affect land in reference to-which, the power of the court was never invoked or put into operation. As the application must be looked to to ascertain the subject' matter brought under the jurisdiction of the court by the proceedings, the offer in evidence by the defendant of the order of condemnation by .itself was , properly rejected. And the offer in evidence together of the application, report .of assessment of damages, and order of condemnation was properly rejected, as the application contained no mention of the land sued for in this action.
The evidence offered by defendant to show the receipt by the guardian of plaintiffs of the amount of damages as assessed by the commissioners in the condemnation proceedings, and that he accounted for the amount paid him in the settlement of his guardianship in the probate court, as well as the deed executed by him as such guardian, was properly excluded. The evident purpose in offering this evidence was to work an estoppel against the plaintiffs. Pretermitting the fact that- they were minors at the time, had they been adults this could not have operated as a transfer of the legal title to the lands, In Hooper v. Columbus & Western Railway Co., 78 Ala. 216, Justice Somerville said: “There are cases which support the view that an equitable title, can be set-up by estoppel at law in cases of this character, where the the plaintiff, having knowledge of the fact that a company is proceeding to construct a line of railroad over his land, allows them to expend large sums of money in such an improvement without objection. We admit there is much force in the reasoning upon which these cases are based and a dictum occurs in the case of New Orleans & Selma R. R. Co. v. Jones, 68 Ala. 48, where-some countenance was given by us, arguendo, to this doctrine. So *610in Pollard v. Maddox, 28 Ala. 321, where the plaintiff’s deed to a railroad company failed to convey the legal title to the land, it was so far construed to operate as a covenant granting the right of way, as to bar the plaintiff by estoppel from claiming damages in an action of trespass at law. We have re-examined the authorities on this question with some doubts as to which is the sounder and better rule in such cases. We have reached the conclusion, that the courts can make no exception, based on sound and just principles which would exclude railroad companies from the operation of the general rule, that in actions of ejectment at law the legal title must prevail.” — Hawkins v. Ross, 100 Ala. 459; Walker v. Murphy, 34 Ala. 591; Nelson v. Kelly, 91 Ala. 569; McCarty v. Woodstock Iron Co., 92 Ala. 468; Morgan v. Carey, 73 Ala. 222; McPherson v. Walters, 16 Ala. 714. Whether this would operate as an estoppel in a court of equity, is not now a question for decision.
The suggestion of adverse possession by the defendant for three years next before the commencement of the suit (Code of 1886, § 2702) was unsupported by evidence. The suit was brought within three years after the institution of condemnation proceedings. The evidence that the line of railroad was surveyed and located over the land more than three years before the commencement of the suit, without more, was without tendency to show that an entry was then made, under claim adverse to the rights of the landowner. The condemnation proceeding was a recognition of the title of the true owner. There was nothing to submit to the jury under the suggestion of adverse possession. Lines of railroad and of other public roads are not infrequently contemplated, surveyed and located, and then changed or abandoned, never becoming permanent.
We find no error in the record, and the judgment must be affirmed.
Affirmed.
Note. — The writer of the foregoing opinion is indebted to the late Chief Justice in its preparation. He had prepared an opinion, which in the main was adopted by the writer, but which had never been passed upon by the court.