Alabama Midland Ry. Co. v. Brown

• Decision Date: 26 April 1893
• Citation: 13 So. 70,98 Ala. 647
• Parties: ALABAMA MIDLAND RY. CO. v. BROWN ET AL.
• Court: Alabama Supreme Court

13 So. 70

98 Ala. 647

ALABAMA MIDLAND RY. CO. v. BROWN ET AL.

Supreme Court of Alabama

April 26, 1893

Appeal from chancery court, Pike county; John A. Foster, Chancellor.

Bill by the Alabama Midland Railway Company against P. H. Brown and others to reform a deed. From a decree for defendants complainant appeals. Reversed.

The instrument sought to be corrected was executed on January 28 1889. The granting portion of the said deed is in the following language: "Doth grant and sell unto the said the Alabama Midland Railway Company and its successors and assigns, the right of way over which to pass at all times by said company, its officers and employes, and particularly for establishing and running thereon a railway, with the requisite number of tracks when completed, and to extend in length the following described tract or tracts of land situate, lying, and being in Pike county, said state, to wit the N.W. 1/4, sec. 12, township 10, range 21; said right of way extending in such direction through the tract of land herein granted as said company, by its engineers, shall think best suited for the purpose of locating and establishing their work, and connecting with said right of way. The said company shall have the right to cut down and remove all such trees, underwood, and other growth and timber on said right of way, and on each side of said road, as, in the opinion of the engineers, it is necessary to remove in order to prevent injury to the road, together with all and singular the rights, members, and appurtenances to said strip or parcel of land belonging, or in any wise appertaining, and more especially the right of way over the same." The defendants filed their answer, and asked that it be taken as a cross bill, resisting the relief prayed, and setting up in support of their contention certain facts, which are sufficiently stated in the opinion. On final submission of the cause the chancellor ordered and decreed "that before complainant shall be entitled to have the deed reformed, it shall be necessary that it be referred to the register to ascertain the damages caused by these trespasses, and that complainant must pay the same before relief is granted to it." Thereupon the chancellor ordered the register to hold a reference in accordance with the decree. Complainant assigns this decree of the chancellor as error.

Gardner & Wiley and A. A. Wiley, for appellant.

Parks & Gamble, for appellees.

COLEMAN J.

The bill was filed to reform an instrument which was intended to convey the right of way over certain lands of the respondents The bill avers that "in the deed the lands over which the right of way passes are described as being the N.W. 1/4 of section 12, when it should have been the N.W. 1/4 of section 13." It is agreed by the parties that there was a mistake in the description of the land, and that the averment of the bill in this respect is true. The reformation of the instrument is resisted upon the ground that respondents were damaged by the breach of a parol agreement made at the time of the execution of the conveyance, and which entered into its consideration. It is averred in the answer and cross bill that by the parol agreement the right of way was to include no more land than was necessary for the roadbed; that, in building embankments, the complainant was not to "borrow" earth from lands adjacent to the...