Birmingham Belt R. Co. v. Lockwood

• Citation: 150 Ala. 610,43 So. 819
• Parties: BIRMINGHAM BELT R. CO. v. LOCKWOOD. [*] LOCKWOOD v. BIRMINGHAM BELT R. CO.
• Decision Date: 14 February 1907
• Court: Supreme Court of Alabama

43 So. 819

150 Ala. 610

BIRMINGHAM BELT R. CO. v. LOCKWOOD. ^[*]

LOCKWOOD v. BIRMINGHAM BELT R. CO.

Supreme Court of Alabama

February 14, 1907

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Action by A. H. Lockwood against the Birmingham Belt Railroad Company. A judgment was rendered in favor of plaintiff, and both parties appeal. Reversed, and judgment dismissing the bill rendered.

Campbell & Johnson, for appellant.

Henry Upton Simms, for appellee.

SIMPSON J.

The bill was filed in this case by the appellee (complainant) against the appellant (defendant), setting up her title to a certain lot in Birmingham, claiming that complainant has the title to the middle of the street abutting said lot referring to the various agreements and ordinances by which defendant and its predecessors obtained the right to lay tracks and operate cars on said street, which is called "Avenue E," and raising some questions as to the regularity of the organization of corporations and the transfers from one to the other. The bill then sets up as the gravamen of its complaint that the "use of Avenue E by said defendant is not a mere continuation of the method of user of the said street by its predecessors"; but, on the contrary, it has discontinued its passenger service, and has "enormously increased the number of freight cars carried across said property, and has greatly multiplied the switching and stops of its trains to allow the unloading of its freight and coal cars," thus using the avenue as "railway yards." The bill describes the annoyances from coal cars, etc., standing in front of her residence unloading, etc., and prays that defendant make full reparation in damages, to be assessed by a jury, and that it be "perpetually enjoined from entering and trespassing upon the property and rights of enjoyment of your oratrix, * * * or of using said Avenue E in front of her property in the manner aforesaid." Without going into all of the details, we hold that the chancellor correctly decided that the complainant is the owner of the west half of block 172, in Birmingham; also that the "respondent is the lawful successor to the rights to operate said railroad as a freight railroad in said Avenue E which were conferred on the Highland Avenue & Belt Railroad & Improvement Company by act of the General Assembly of Alabama of February 18, 1887." As to whether those rights are subject to the right of the complainant to compensation, present and prospective, depends upon certain facts which we proceed to inquire into.

It appears, from the exhibits to the answer and other evidence that one Alberto Martin (from whom complainant derives title), by indenture, conveyed the interest in the entire tract of land to the Elyton Land Company, and that company therein agreed to survey the land and lay off blocks, lots, and streets, and to divide the "blocks or squares, exclusive of the streets and alleys," so as to give said Martin "two blocks or squares" and said company one, which was done. On the 24th day of April, 1885, the mayor and aldermen of Birmingham, by indenture, for considerations therein mentioned, to be performed by the Elyton Land Company, its successors and assigns, granted the right of way over certain streets, including said Avenue E, "for the purpose of building, constructing, operating, and maintaining its said street car lines," and said Elyton Land Company agreed to build a double street car track on certain streets and a single track on Avenue E, and to furnish the street car line with first-class equipment, to have cars running within six months, to be drawn by horses, mules, or steam locomotives, to be inclosed to resemble street cars. The road was put in operation, first drawing the cars by mules, and about June, 1886, it was converted into a dummy line, and operated for passengers. In September, 1886, application was made to the city authorities for a right of way "for the purpose of a street railroad, and a railroad to be used for transferring cars between the different railroads and the various important manufacturing industries of the city," which application was granted, and under it an additional track was laid on Avenue E, and these tracks were used interchangeably for the passenger service, for transferring cars between the various railroads and manufacturing enterprises, and for delivering cars loaded with coal and other articles to individuals along the line. It seems that this agreement was not signed, but was acted on and the business thus continued until August 7, 1888, when an indenture between the Highland Avenue & Belt Railroad Company, as the successor and assignee of the Elyton Land Company, and the mayor and alderman of Birmingham, reciting that, whereas, the road had been so built and operated under the previous unsigned agreement; and, "whereas, it was contemplated by said contract that for the purpose of transferring cars and freight between the various railroads and manufacturing establishments of the city of Birmingham, it should thereby grant to the Elyton Land Company or its assigns the right to construct a railroad upon and along Avenue E," and the party of the first part has built on said avenue a single railway "for its belt railroad," and has done certain street grading and paving which had been required: Now, in consideration of what said party had...