American Lumber Co. v. Tombigbee Valley R. Co.

• Decision Date: 13 February 1908
• Citation: 45 So. 911,154 Ala. 385
• Parties: AMERICAN LUMBER CO. v. TOMBIGBEE VALLEY R. CO.
• Court: Alabama Supreme Court

45 So. 911

154 Ala. 385

AMERICAN LUMBER CO. v. TOMBIGBEE VALLEY R. CO.

Supreme Court of Alabama

February 13, 1908

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Suit by the American Lumber Company against the Tombigbee Valley Railroad Company. From a decree dismissing the bill plaintiff appeals. Affirmed.

The case made by the bill is that a contract was entered into between the appellant and appellee on the 29th day of January, 1906, the substance of which is as follows: (1) That the railroad company, which operates a line of railway from Nannahubba Bluff, in Mobile county, Ala., to Millry, in Washington county, Ala., lets and leases to the said American Lumber Company, its successors or bona fide assigns, the right or privilege for a period of 10 years from the 1st day of February, 1906, to operate over the said line of railroads such trains as the said lumber company and its successors may desire to operate for the purpose of transporting and carrying thereover all logs or other property which they are permitted to transport over the said railroad under the terms hereof; the said operation to be regulated by the following terms and provides: (2) The lumber company to supply its own trains, including cars, motive power, and other equipment and shall operate its trains at its own expense, and shall carry only certain things mentioned in the contract not necessary to be here set out. (3) The operation of the trains over the track of the said railroad company shall be in obedience to the reasonable train orders of the trainmaster of said railroad company, or of whoever may then be operating the said railroad. That said railroad shall keep its side track in reasonably safe condition for operation, and shall promptly give proper and reasonable train orders for the operation of all trains which said lumber company may desire to run over the said track, etc. (4) Provides for the joining and spur tracks built by the lumber company and for the transportation of fuel and employés, etc. 5, 6, 7, 8, 9, and 10 are not necessary to be set out. (11) It is the intention hereof that the right to operate trains over the said railroad hereby vested in the said lumber company shall be and remain in said lumber company and its successors for the full term and for the full extent herein provided, no matter into whose hands the said railroad may pass, and that the said rights shall attach to and follow the said railroad. The other provisions of the contract are not necessary to be set out.

The contention of the appellant is that the bill is for the protection by injunction of the lumber company's vested property rights in the railroad described, by virtue of sections 1, 2, and 11 of the contract; while the contention of the appellee is that the bill seeks to enforce a specific performance of a nonenforceable contract. The bill alleges the refusal of the railroad company to permit it to operate its logging trains, and also a refusal on the part of the railroad company to issue the necessary and...