Elyton Land Co. v. South & N.A.R. Co.

• Decision Date: 01 December 1893
• Citation: 100 Ala. 396,14 So. 207
• Court: Alabama Supreme Court
• Parties: ELYTON LAND CO. v. SOUTH & NORTH ALABAMA R. CO.

14 So. 207

100 Ala. 396

ELYTON LAND CO. v. SOUTH & NORTH ALABAMA R. CO.

Supreme Court of Alabama

December 1, 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Ejectment by the Elyton Land Company against the South & North Alabama Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

This was an action of ejectment brought by the Elyton Land Company against the South & North Alabama Railroad Company for a right of way over a strip of land 100 feet in width, in the city of Birmingham. The averments of the complaint are sufficiently stated in the opinion. The defendant demurred to the complaint on the following grounds: "(1) The facts alleged in said complaint show that defendant has a title to the alleged rights of way by deed executed by plaintiff prior to the commencement of this action, and the right to possession thereof. (2) There are no facts alleged in said complaint which show that the alleged conveyance of plaintiff to defendant of the alleged rights of way sued for in this action was upon any condition subsequent or precedent. (3) The facts alleged in said complaint fail to show with sufficient certainty that the alleged conveyance by plaintiff of the alleged rights of way to defendants was upon condition either precedent or subsequent. (4) The facts alleged in said complaint show that the plaintiff, prior to the commencement of this action, conveyed, by deed properly executed, to defendant, the alleged rights of way sued for in this action and there are no averments of any facts which show any reconveyance by defendant of said right of way to the plaintiff, or any reinvestment of the title to said rights of way had, in and to the plaintiff." The court sustained the several grounds of demurrer, and, plaintiff declining to amend his complaint, the court rendered judgment for the defendant; and the plaintiff now brings this appeal, and assigns as error the rulings of the court upon the demurrer. Affirmed.

Alex. T. London, for appellant.

Hewitt Walker & Porter, for appellee.

HARALSON J.

The suit is for a strip of land 100 feet wide, running, and constituting the right of way of the defendant corporation through the city of Birmingham. The averments of the complaint, on which recovery is sought, are that in 1872 the plaintiff was the owner and in possession of said tract of land, and, for a nominal consideration, conveyed the same to the defendant railroad company as a right of way, upon a condition expressed in the deed of conveyance as follows "Provided, however, that any other railroad running into or through the city of Birmingham shall have the right to run a parallel track along upon the same right of way;" that defendant accepted the conveyance upon the condition therein expressed, and built the track of its railroad thereon; that on the 25th July, 1890, the Highland Avenue & Belt Railroad Company, running a railroad into the through Birmingham, demanded of defendant the right to run a track on said right of way, parallel to defendant's track, which defendant refused to permit to be done, and thereupon, before the bringing of this suit, the plaintiff claimed a forfeiture of the said tract of land, and demanded the possession thereof from the defendant, but the defendant refused to surrender, and unlawfully withholds, the possession thereof. There was a demurrer to the complaint, on several grounds, as set out in the record, which was sustained; and plaintiff, declining to amend, suffered judgment on the demurrer, to reverse which this appeal is prosecuted.

There is but one question presented for review, and that is the proper construction of the clause in the deed which is quoted in the complaint, and set out above. The appellant claims that this is a condition subsequent, conferring on it the right to forfeit the estate on breach thereof, while the appellee contends that it is a covenant or limitation or equitable easement, for a breach of which, the remedy, if any, would be an action for damages at law, or a bill for the specific performance thereof in equity. In its most extended sense, the word "condition" signifies a clause in an agreement which has for its objects to suspend, rescind or modify the principal obligation, or, in a will, to suspend, revoke, or modify the devise or bequest. 4 Kent, Comm. 121; Co. Litt. 201a. No precise or technical words are required in a deed, to create a condition precedent or subsequent. It is said that the words, "proviso," "ita quod," and "sub conditione," are the most proper to make a condition. Yet they have not always that effect, but frequently serve for other purposes, sometimes operating as a qualification or limitation, and sometimes as a covenant. 4 Com. Dig. 376, 377. But whether they amount to the one or the other may be matter of construction, dependent on the contract, the nature of the circumstances, and the intention of the party creating the estate. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy. But when that is not clearly manifest the construction to be given...