Georgia Pac. Ry. Co. v. Gaines

• Decision Date: 09 December 1889
• Citation: 88 Ala. 377,7 So. 382
• Parties: GEORGIA PAC. RY. CO. v. GAINES.
• Court: Alabama Supreme Court

7 So. 382

88 Ala. 377

GEORGIA PAC. RY. CO. v. GAINES.

Supreme Court of Alabama

December 9, 1889

Appeal from chancery court, Walker county; THOMAS COBBS, Chancellor.

The bill in this case was filed on June 9, 1884, by the Georgia Pacific Railway Company against George S. Gains, and sought to enforce the specific performance of an agreement, by which the defendant bound himself to convey to A. H. Colquit, E. C Gordon, and W. S. Gordon, "their associates and successors," all the coal and iron on and in a certain tract of land, particularly described, containing 80 acres "together with the right to enter upon the said lands and prospect for coal and iron, and to mine the same, if they should desire, and also the right of way for roads and railroads across our lands." This agreement was dated August 19, 1880, and was signed by the defendant and his wife; and it was in the same words, mutatis mutandis, as the contract involved in the case of Wilks v. Railway Co., 79 Ala. 180, which is there set out in full. It recited that said Colquit and Gordon, and their associates, "propose to build a railroad from some point on the Tombigbee river, at or near Columbus or Aberdeen, Miss., or from some point on the South & North Railroad of Alabama, or from some point on the Alabama Great Southern Railroad, or from some point on the Memphis &amp Charleston Railroad, and running into and through the county of Fayette or the county of Walker, state of Alabama, or both;" bound them to begin the work of surveying building, or grading such railroad within four months from the date of the instrument, and to extend it to the county of Fayette or the county of Walker, or both, "within three years from this date;" and it further recited, as the consideration moving to Gains and wife, the advantages and benefits supposed to accrue to them in the future from the building of the contemplated railroad; and contained another clause, in these words: "It is further especially and expressly understood that no such deeds to the coal and iron we own shall be made to the parties named in this instrument unless they shall build the railroad as specified in this instrument; nor, on the other hand, shall the parties who now proposed to build this railroad be liable for any damages should they fail to build the same." The original bill alleged that "said Colquit et al., in strict pursuance of the terms and stipulations of said agreement on their part, within less than four months from said 19th day of August, 1880, did begin, or cause to begin, the work of surveying, building, or grading said railroad, and did also, within three years from said date, extend said railroad, under the name of the 'Georgia Pacific Railway,' from Columbus, Miss., on the Tombigbee river, so as to reach said Walker county, Ala.; and said railroad was completed, equipped, and operated from said city of Columbus into said county of Walker, by said Colquit et al., and their successors, before the expiration of three years from the date of said contract, and has continuously, since its completion, and is now, in constant and running condition." It was alleged, also, that on the 4th day of May, 1882, Colquit and his associates sold and transferred said written contract, with all rights accruing under it, for valuable consideration, to the Richmond & Danville Extension Company, a corporation chartered under the laws of Mississippi; and that said last corporation, on 20th December, 1883, sold and transferred it for valuable consideration to complainant. An amendment of the bill was added April 6, 1887, alleging that "said contract was so acquired by complainant as property taken by it for subscription to the capital stock of said Georgia Pacific Railway Company by said R. & D. Extension Company;" and a further amendment, October 20, 1887, alleging that complainant "had the authority and power, under the laws of Alabama, to acquire said covenant as aforesaid, and now has the authority and power to hold and own the same, and the real estate therein described." A copy of the complainant's charter, as it was called, was made an exhibit to the original bill, being the proceeding which showed its formation by the "consolidation of the Georgia Pacific Railroad Company, of Georgia, the Georgia Pacific Railroad, of Alabama, the Elyton & Aberdeen Railroad Company, the Columbus, Fayette & Decatur Railroad Company, and the Greenville, Columbus & Birmingham Railroad Company;" the agreement of the consolidation reciting that it was proposed "to form a new consolidated company, for the purpose of constructing, owning, and operating a continuous line of railroad from Atlanta, in the state of Georgia, through the states of Alabama and Mississippi, to some point on the...