Schneider v. Mobile County

• Decision Date: 12 June 1969
• Docket Number: 1 Div. 410
• Citation: 224 So.2d 657,284 Ala. 304
• Parties: Carl SCHNEIDER v. MOBILE COUNTY et al.
• Court: Alabama Supreme Court

Page 657

224 So.2d 657

284 Ala. 304

Carl SCHNEIDER v. MOBILE COUNTY et al.

1 Div. 410.

Supreme Court of Alabama.

June 12, 1969.

A. Fletcher Gordon, J. Edward Thornton, Hardy B. Smith, Mobile, for appellant.

James E. Moore, of Moore, Moore, Downing & Layden, Mobile, for appellees.

LAWSON, Justice.

This is a declaratory judgment proceeding filed in the Circuit Court of Mobile County, in Equity, by Carl Schneider against Mobile County and the members of the governing body of that county in their official capacities.

The bill sought a declaration as to whether two warranty deeds, executed in 1924 to Mobile County, as grantee, conveyed the fee simple title to the real property described in the deeds so as to vest in Mobile County the minerals under the described lands, or whether those deeds only conveyed to Mobile County an easement for a public roadway, leaving the minerals in the grantors and their successors in title.

Demurrer was sustained to the original bill and to the bill as first amended. Thereafter the complainant filed what is tantamount to a substitute bill, but which was treated by the parties and the trial court as simply constituting an amendment to the original bill, as previously amended, and we will so consider it. The last-mentioned bill or amendment was subsequently amended. Demurrer was then interposed to the bill as last amended. The demurrer was overruled. Respondents filed their answer which was made a cross bill. No answer was filed by the complainant to the cross bill, but that omission is of no importance in this case for the so-called cross bill was unnecessary. It merely asked for a declaration in favor of respondents rather than in favor of complainant.

Submission for final decree was had on 'Bill of Complaint as last amended with exhibits attached thereto; Answer and Cross-Bill of Respondents with exhibits attached thereto; written Submission of said cause to the Court by the parties Complainant and Respondent; written Stipulation of facts executed by the attorneys of record for the respective parties.'

The trial court declared, in effect, that the two deeds, the subject of this litigation, conveyed 'an estate in fee simple to the grantee, Mobile County, Alabama, without any limitation as to interest or estate in the grantee * * *.'

From that decree the complainant below appealed to this court.

Appellant argues an assignment of error which reads: 'The Court erred in entering its order dated June 28, 1961 (Rec. p. 13), sustaining the demurrer filed by Appellees to the original Bill of Complaint.'

Appellant points out that the demurrer was addressed to the original bill as a whole, asserts that the said bill was good as against the demurrer interposed thereto in so far as the bill sought declaratory relief (Actually, the original bill sought no other relief.), and appellant says that therefore the trial court erred to a reversal in sustaining the demurrer.

We have said that where a bill seeking a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and declaration of rights made and entered only after answer and on such evidence as the parties may deem proper on submission for final decree. An exception to this general rule is that where there is no factual controversy, and only a question of law is presented for decision, and particularly where counsel argue the case on the basis that a decision will settle the controversy and be desirous, it is proper to decide the question on demurrer. Orkin Exterminating Co. of North Alabama v. Krawcheck, 271 Ala. 305, 123 So.2d 149. Such is not the situation before us, however.

We are not advised of the ground or grounds of demurrer addressed to the original bill which the trial court considered to be well taken and we have not undertaken to analyze the original bill in connection with all the grounds of the demurrer addressed thereto. It is possible, if not probable, that the trial court considered that the original bill did not show a bona fide justiciable controversy in that it did not contain allegations to show that complainant had sufficient interest in the property conveyed by the deeds in question as to enable him to maintain an action for declaratory judgment. If the bill was deficient in that respect, a demurrer addressed to the bill as a whole taking that point should have been sustained. One of the grounds of demurrer took that point. Chancey v. West, 266 Ala. 314, 96 So.2d 457; City of Albertville v. Scott, 268 Ala. 172, 104 So.2d 921; Holland v. Flinn, 239 Ala. 390, 195 So. 265.

We will assume solely for the purpose of disposing of the assignment of error presently under consideration that the trial court erred in sustaining the demurrer interposed to the original bill. But if such assumption be correct, which we do not decide, it would not follow that the decree should be reversed. Error to warrant reversal must be prejudicial. King Lumber Co. v. Crow, 155 Ala. 504, 46 So. 646. True, the complainant was required to amend but as to matters which did not place upon him any burden not present in the original bill. The cause proceeded to a final decree wherein declarations of rights of the parties were made. The declarations were not as complainant wanted them but he was not necessarily entitled under the averments of his original bill to declarations favorable to him. The rights of the parties were settled by the final decree and since the matters added by amendment in no way prejudiced complainant's case, we see no justifiable basis for reversing the final decree of the trial court here under review even on the assumption that the trial court should not have sustained the demurrer to the original bill.

In one of the subject deeds Mrs. Sarah Ann Miller was the grantor. The grantors in the other deed were Mrs. Fannie Ford and her husband, Ed C. Ford.

The granting clauses of the two deeds are identical except for the cash consideration. They recite that for the stated consideration the grantors: '* * * have GRANTED, BARGAINED, SOLD, and by these presents do hereby GRANT, BARGAIN, SELL and CONVEY unto the said Mobile County, Alabama, its heirs and assigns, the following described Real Estate, situated in the county of Mobile and State of Alabama, to wit:'

The language quoted above is followed in the Sarah Ann Miller deed by a description which reads in part as follows: 'A strip of land, to be used as right of way for the Citronelle Road, 30 feet wide being 15 feet on each side of the following described line. * * *' The pertinent part of the description in the Ford deed reads: 'A strip of land 50 feet wide, to be used as right of way for the Citronelle Road, being 25 feet on each side of the following described line, * * *.'

The first sentence of the habendum clause in the Miller deed reads: 'TO HAVE AND TO HOLD the aforegranted premises to the said Mobile County.' The first sentence of the habendum clause in the Ford deed reads: 'TO HAVE AND TO HOLD, the aforegranted premises to the said Mobile County Their heirs and assigns FOREVER.'

We have carefully read the briefs filed on behalf of the appellant, but see no need to discuss in this opinion all of the cases cited in those briefs because we entertain the view that under our holding in Rowell v. Gulf, M. & O.R. Co., 248 Ala. 463, 28 So.2d 209, which was approved in Town of Citronelle v. Gulf Oil Corp., 270 Ala. 378, 119 So.2d 180, the decree of the trial court is due to be affirmed.

In Rowell, supra, our decision rested on the construction to be placed on two deeds executed by William H. Rowell and wife and Thomas B. McDonald and wife, in 1899, to the Mobile and Ohio Railroad Company. The granting clause of those deeds, except for the differences in amounts of cash consideration, were identical and recited that the grantors 'for the further consideration of the benefits to accrue to us from the construction of a railroad on the strip of land and on the station ground herein conveyed, do grant, bargain, sell and convey unto the said Mobile & Ohio Railroad Company For right of way and station grounds that certain tract of land situated in Mobile County, Alabama, more particularly described as follows, to-wit:' (Emphasis supplied.) After the description of the land, the deeds under consideration in Rowell, supra, recited: 'The station grounds and right of way herein conveyed and the tract of land herein described being according to a map and survey signed by J. E. Buck, C.E. * * *.' The habendum clause in each deed was the same: 'To Have And To Hold unto the said Mobile & Ohio Railroad Company and its successors forever.'

Subsequent to 1899, McDonald conveyed to Rowell his interest in his surrounding land, including in the conveyance the land sold to the railroad, Mobile & Ohio Railroad Company, but subject to the rights of the railroad under his former deed to it.

After Rowell's death, the executors and trustees under his will filed suit against Gulf, Mobile & Ohio Railroad Company, as successors to Mobile & Ohio Railroad Company, seeking a declaration to the effect that as such executors and trustees they had title and right to possession of all the land conveyed to Mobile & Ohio Railroad Company by the two deeds executed in 1899, to which we have previously referred, because of an alleged abandonment of such lands as a railroad and station grounds by the railroad company's successor.

Demurrer to the bill was sustained and the complainants appealed.

In our opinion, affirming the trial court in the Rowell case, we said that the question before us was 'whether these instruments conveyed an absolute estate in fee simple of the lands described or a mere easement or servitude thereon.'

We pointed out that the decided weight of authority is that where the deed, in the granting clause, conveys a right of way only, the estate conveyed is construed to be an easement and not a fee. Bu...