Malone v. Decatur Cotton Compress Co.

• Decision Date: 22 May 1924
• Docket Number: 8 Div. 659.
• Citation: 211 Ala. 522,100 So. 807
• Parties: MALONE v. DECATUR COTTON COMPRESS CO.
• Court: Alabama Supreme Court

100 So. 807

211 Ala. 522

MALONE v. DECATUR COTTON COMPRESS CO.

8 Div. 659.

Supreme Court of Alabama

May 22, 1924

Rehearing Denied June 26, 1924.

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Bill by the Decatur Cotton Compress Company against B. L. Malone, to prevent the obstruction, etc., of a right of way. From a decree granting preliminary injunction, respondent appeals. Affirmed.

W. W Callahan, of Decatur, and Tennis Tidwell, of Albany, for appellant.

A. J Harris, of Decatur, for appellee.

MILLER J.

This is a bill in equity for a preliminary and perpetual injunction filed by the Decatur Cotton Compress Company, a corporation to enjoin and restrain B. L. Malone, the defendant, from cutting away, cutting down, and fencing across a 50-foot strip reservation of the right of way of complainant leading to its property from Moulton street in the city of New Decatur, now Albany.

The court at the hearing, on the bill of complaint as amended, verified by affidavit, and on ex parte affidavits offered by the parties, made a decretal order enjoining the defendant from cutting down and fencing across or otherwise obstructing that certain way, 50 feet in width and adjoining the property of the Home Oil Mill Company on the west, and leading from Moulton street in Albany, Ala., to the Decatur Cotton Compress Company, being the way designated on the map as First avenue in Albany, upon complainant giving bond in the sum of $250, conditioned, and payable as the statute directs, to be approved by the register. This order was made March 21, 1924; the bond was given and approved March 22, 1924, as the order and statute directed; the writ of injunction issued and was executed; this appeal was taken on March 26, 1924, by the defendant from the order granting the preliminary writ of injunction; and this order is the error assigned. This appeal was taken in time. An appeal to this court will lie from such an order, if taken within ten days thereafter. Section 4531, Code 1907.

The bill as amended alleges on August 18, 1900, the Decatur Land Company sold and conveyed to the complainant a tract or parcel of land in New Decatur, now Albany, containing 2.8 acres, fully and accurately describing it, on which is situated a compress used for compressing cotton. This compress serves, as the bill alleges, "the public in the compression of cotton, much of which was conveyed to it by means of wagons, and its premises could only be reached by wagons by one route [the fifty foot way] and by railroad by another, which two ways are set forth and described in this deed."

This conveyance, after describing the 2.8 acres as part of the description and identification thereof, says: "as shown on the plat of the Decatur Land Improvement and Furnace Company's addition to Decatur, Alabama." This conveyance contains this covenant:

"The Decatur Land Company further agrees and binds itself to reserve and set aside for the use of the public, a roadway fifty feet in width adjoining and west of the Alabama Foundry and Machine Company property and the Decatur Cotton Compress Company property, and extending from Moulton street on the south to a connection on the north with a fifty foot street, designated First avenue, in Decatur Mineral and Land Company's addition to Decatur, Alabama."

This intended roadway of 50 feet in width adjoins and is immediately west of this 2.8 acres and extends to Moulton street on the south and to Decatur on the north. It appears from the bill and the affidavits that the Decatur Land Company, the grantor in the conveyance, at the time of the execution of it owned this 50-foot strip of land and the land adjoining it on the west; and when the sale was made to complainant, the grantor had in its possession a large map of the city of New Decatur, now Albany, known as the Gall Map, which shows this 50-foot strip as an extension on the First avenue from Moulton street to and along the western boundary of this 2.8 acres. The evidence shows this map was drawn by the owner, the predecessor in title to the Decatur Land Company of this property in the year 1887, the proposed streets and avenues running through it appear on it, and this 50-foot strip is shown thereon as an extension of or connecting with First avenue at Moulton street. The bill alleges the Decatur Land Company has been in possession of this map and "it has been used by it in the sale of lots and duplicates thereof have been in the hands of various individuals and posted in public places in this community."

The general principle applicable to the facts of this case as they appear in the bill as amended, and which is supported by some of the affidavits, is stated in 19 Corpus Juris, p. 928, § 127, headnotes 61-63, as follows:

"Where the owner of a tract of land lays it out in streets and lots delineated on a map or plan and sells lots bounded by such streets which are referred to in deeds of conveyance as boundaries, the legal effect of the grants is to convey to the grantees the right of way over the streets respectively laid out. This is not merely a matter of description, but an implied covenant that there are such streets as are referred to in the deeds and the grantor and all persons claiming under him are forever estopped to deny their existence, and they cannot by any act of their own defeat the right of the grantees to use the platted streets for the purposes intended."

See, also, where the same principle is declared in 14 Cyc. pp. 1176-1177, headnote 53.

This court has clearly expressed itself on this subject in Teasley v. Stanton, 136 Ala. 647, 33 So. 823, 96 Am. St. Rep. 88, as follows:

"But there is no such difficulty in the claim of Burch. In the deed from Wilson to Burch the lot conveyed is described as fronting on 'the continuation of a strip of

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