Louisville & N. R. Co. v. State

• Decision Date: 12 December 1963
• Docket Number: 1 Div. 140
• Citation: 159 So.2d 458,276 Ala. 99
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 458

159 So.2d 458

276 Ala. 99

LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. STATE of Alabama.

1 Div. 140.

Supreme Court of Alabama.

Dec. 12, 1963.

Rehearing Denied Jan. 16, 1964.

Edmund R. Cannon, Jr., Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.

Richmond M. Flowers, Atty. Gen., and Maurice F. Bishop, Sp. Asst. Atty. Gen., for appellee.

MERRILL, Justice.

The State of Alabama, appellee and complainant below, filed an action for declaratory judgment and injunctive relief because appellant Louisville & Nashville Railroad Company, hereinafter designated L&N, had connected with a spur track on a highway right-of-way purchased by the State, and was operating trains across the right-of-way on the spur track. The appeal was taken from a decree holding that the State's rights were superior to those of appellant and enjoining L&N from using the spur track on the right-of-way.

In 1942, appellant Southern Furniture Manufacturing Company, hereinafter referred to as Southern Furniture, acquired a tract of land measuring approximately 2,000 feet north and south and 1,000 feet east and west. The south boundary of the property was the L&N right-of-way and the L&N maintained a fence along the boundary line. A spur side track entered the property from the north, passed alongside a warehouse on the property, and extended south beyond the warehouse toward the L&N track.

On July 27, 1942, Southern Furniture conveyed to Gulf, Mobile & Ohio Railroad Company, hereinafter referred to as GM&O, an easement for railroad side track purposes across their tract, in pertinent part as follows:

'A strip of land twenty (20) feet in width, that is ten (10) feet in width, on each side of the center line of the side tracks of the Gulf, Mobile and Ohio Railroad Company, as the same are now located, and constructed on and across that certain lot or parcel of land described as follows:'

* * *

* * *

The easement further provided:

'The conveyance of the easement hereby made is upon the expressed condition subsequent, that if the Gulf, Mobile and Ohio Railroad Company shall at any time, remove its side tracks from the premises hereinabove described, the rights hereinabove granted, ipso facto, will revert to the Southern Furniture Manufacturing Company, its successors or assigns.'

In 1956, Southern Furniture conveyed the south 175 feet of the parcel between the warehouse and the L&N right-of-way to Gulf Development Company, and that corporation sold the strip to the State for a right-of-way for a limited access highway in 1958.

When the State purchased this portion of the right-of-way, the spur track of GM&O extended on the proposed highway right-of-way but did not extend to the L&N right-of-way and terminated 106 feet from the mainline of the L&N tracks.

The State's bill of complaint alleged these facts, averring that the spur track, when the easement was executed in 1942, and 'as the same were then located,' had ended 106 feet short of the L&N tracks and had never been connected to the L&N tracks until 1959, when Southern Furniture and L&N trespassed on the highway right-of-way purchased by the State in 1958, connected the spur track to the L&N tracks and the maintenance and operation of the spur track made it impossible for the State to use its right-of-way for highway purposes.

Demurrers were filed to the bill, and when overruled, Pleas A were filed. Pleas A asserted that the conveyance to the State had been subject to the easement from Southern Furniture to GM&O and had the State investigated the 1942 conveyance, it could have been ascertained that the easement extended across the strip purchased by the State; and that L&N acquired, under a novation agreement dated May 28, 1959, between GM&O, L&N and Southern Furniture all the right, title and interest of GM&O in the easement executed in 1942.

Pleas A were set down for hearing and the court ruled that they were not legally sufficient as a defense. Appellants then filed Pleas B. These pleas were identical with Pleas A except that the following was added:

'* * * on October 23, 1958, the road bed of the side tracks covered by the easement grant dated July 27, 1942, extended beyond where the rails of such side tracks ended on October 23, 1958; that there were cross ties, spikes, and other railroad hardware in said road bed beyond where said rails ended on October 23, 1958; that a personal examination of Parcel 1 on October 23, 1958, and next prior to such date, would have revealed such road bed, the cross ties thereon and the railroad spikes and other railroad hardware, * * *.'

This plea was held sufficient, appellants demanded a jury under Tit. 7, § 164, Code 1940, and the factual issue was tried to a jury which found in favor of the State. A motion for a new trial was overruled and the court entered the decree from which the appeal was taken.

Appellants' argued assignments of of error are based mainly upon the overruling of the motion for a new trial and the points argued in brief are certain grounds of that motion. It is argued that the verdict--'We, the jury, find the issue in favor of the complainant' was not such a verdict that would support the final decree rendered by the court. We cannot agree.

Appellants assert in brief that:

'The basic question of fact in this case was whether on July 27, 1942, (the date of the easement grant from Southern Furniture to GM&O) the spur track in question was 'located and constructed' entirely over and across Parcel 1 as shown on Exhibit A to the bill of complaint, to the north right-of-way line of L&N. * * *'

This question was amply and ably presented to the jury both by the evidence adduced and the charge of the court. The evidence was in conflict and the jury found the issue in favor of appellee. It was admitted in the pleadings, at the trial and in brief that there never had been a connection between L&N tracks and the GM&O spur line here involved until after the State purchased the strip between the warehouse and the L&N tracks for a highway right-of-way. We hold that final decree could be rendered on the form of the verdict of the jury.

It should also be noted that the trial court made a finding of fact as follows:

'1. As of July 27, 1942, the spur track of the GM&O ended or terminated at a point 106 feet north of the center of the main rail line of the L&N as set out on Exhibit A attached to the complaint and as alleged in the complaint.

'2. As of October 23, 1958, the GM&O spur track terminated at the same point, specifically, at a point 106 feet north of the center of the main rail line of the L&N as alleged in the complaint and as shown on the map attached as Exhibit A to the complaint.

'On the basis of these factual findings, this court is of the opinion, finds, and holds that (1) the respondents do not have the right to have and maintain a railroad spur track extending from the L&N right-of-way into Parcel No. 1, * * * and do not have the right to have and maintain a railroad spur track extending from the L&N right-of-way into the right-of-way or easement acquired by the State of Alabama on October 23, 1958, * * * except as the same is herein found to have been located as of July 27, 1942, to-wit:

'From the northerly part of the said Parcel 1 extending in a general southwesterly direction to a point 106 feet north of the center of the rail of the main line of the L&N, as shown on the map attached as Exhibit A to the complaint, and as alleged in said complaint.'

It is next argued that the court erred in refusing to give certain written charges requested by appellants on the issue of reverter. One of them, charge 32 reads:

'I charge you Gentlemen of the Jury that there can be no reverter under the pleadings in this case in favor of the State of Alabama of any part of the side tracks covered by the easement grant dated July 27, 1942.'

Appellee's bill did not raise the issue of reverter but appellants' Pleas B did. The requested charges were, in effect, general affirmative charges on the issue of reverter under the condition subsequent in the 1942 easement grant. Since no evidence supported appellants' claims that the spur track extended all the way to the L&N tracks prior to 1959, the trial court correctly refused the charges made grounds 24, 28, 29, 34 and 45 of the motion for a new trial.

Ground 35 of the motion for a new trial charges error in the refusal of written charge 46. This charge is argumentative, confusing and speculative. Such charges are properly refused. Harris v. Martin, 271 Ala. 52, 122 So.2d 116; Davis v. Wingard, 269 Ala. 535, 114 So.2d 450.

Ground 46 of the motion for a new trial charges error in the giving of charge 6 requested by the State, which reads:

'I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence that the Gulf, Mobile & Ohio Railroad Company removed any portion of its side tracks over what has been described in this proceeding as Parcel No. 1 as of October 23, 1958, then the defendants would have no right to construct or maintain a railroad side track over that portion of said Parcel No. 1.'

There was no evidence of the removal of rails by anyone. Furthermore, that part of the lease already quoted provided that if GM&O 'shall at any time remove its side tracks from the premises hereinabove described, the rights hereinabove granted, ipso facto, will revert to Southern Furniture Manufacturing Company, its successors or assigns.'

The evidence showed and appellants admitted that the spur track had never extended all the way across Parcel No. 1 to the L&N right-of-way prior to 1959. The State was a successor and assignee of Southern Furniture and received all the title and interest of Southern Furniture as of the date of October 23, 1958. According to the clear language of the easement to GM&O, notice of which was charged to the State, any removal of its tracks would cause a reversion to Southern...