Seaboard Air Line Ry. v. Anniston Mfg. Co.

• Decision Date: 23 April 1914
• Docket Number: 596
• Citation: 186 Ala. 264,65 So. 187
• Parties: SEABOARD AIR LINE RY. et al. v. ANNISTON MFG. CO.
• Court: Alabama Supreme Court

65 So. 187

186 Ala. 264

SEABOARD AIR LINE RY. et al. v. ANNISTON MFG. CO.

No. 596

Supreme Court of Alabama

April 23, 1914

Appeal from City Court of Anniston; Thomas W. Coleman, Judge.

Bill by the Anniston Manufacturing Company against the Atlanta &amp Birmingham Air Line Railway Company and the Seaboard Air Line Railway Company to cancel and surrender a deed granting a right of way, and for general relief. From a decree for complainant, respondents appeal. Affirmed.

The following is the opinion of the chancellor referred to:

"The only question called to the attention of the court on the oral argument, and in the briefs, is as to the proper construction of certain recitals or provisions in a deed of a right of way made by complainant to the Air Line Railway Company. I shall assume, without a critical examination of the demurrer, that this is the only meritorious question although it may be doubted that the Air Line Railway Company is a proper party under the allegation that it has conveyed away all of its interest in the property in the controversy.

"The provisions of the deed pertinent to the controversy are these: 'Know all men by these presents that the undersigned, the Anniston Manufacturing Company, a body corporate, for and in consideration of one dollar to it in hand paid by the A. & B.A.L. Ry. Co., a body corporate, and for the further consideration of the benefits to be derived by the Anniston M. Co. from the construction and operation of the railroad to be constructed and operated by the said A. & B.A.L. Ry. Co., or by its successors and assigns, as now contemplated by said railroad in and to the city of Anniston, in said county and state, has granted, bargained and sold, etc., the following described right of way for the construction, maintenance, and operation of its said railway, to wit, etc. And for the consideration aforesaid the said Anniston M. Co. consents to the said A. & B.A.L. Ry. Co., its successors and assigns, constructing and maintaining and operating its said railroad in, over, and along and across any streets, avenues, and alleys that said right of way crosses, or in, over, and along which it may extend, and for the consideration aforesaid the said Anniston M. Co. releases said railway, its successors and assigns, from any and all damage that may result to it, or to any lots or land belonging to it, or to which it has or may have an interest that may abut upon any streets, avenues, alleys, or public highways, etc., from the construction of the railroad according to its proposed plan or survey of the railroad in the city of Anniston, and according to the ordinances of the city recently passed and adopted by the city of Anniston, and from the maintenance and operation of said railroad by said railway company, its successors and assigns.'

"The right of way granted in the deed is alleged to cover a strip of land very near the manufacturing plant of complainant, and to divide its property, and extends apparently for a distance of approximately 800 feet in an irregular direction through the property of complainant.

"It appears from the amendment last filed to the bill that the railroad whose construction was contemplated by the provisions of said deed was to be a branch line from Jacksonville to Anniston, about 15 miles long, and that for the construction of the same the city of Anniston had by ordinance granted a franchise to the said railway company, or its assigns, of no benefit, except by the building of the railroad. On the other hand, the continued existence of the easement barren of a railroad depreciated the value of complainant's property. If the grant should be held to continue, though the contemplated railroad should never be built, the grantee could prevent complainant from passing over or using in any way the right of way, could erect barriers and prevent trespassing, and might force complainant to repurchase at grantee's figures, if complainant should be under the necessity of recovering control of the surface of the granted right of way.

"Of course the grantee might abandon the easement and so lose it; but, if its right is absolute, and without any condition, that is, if there is nothing more than a restriction that the right of way can be used only for a railroad, it could hold the right of way intact, and never use it for any purpose whatever. In other words, if the right of way shall remain intact forever, though no railroad be constructed, the complainant has parted with its property for a definite purpose of benefit to itself, which purpose it has no power to accomplish or compel, and there is no other benefit of any equivalent value to be derived from the conveyance, but, on the other hand, a positive and serious detriment, or at least the continuous possibility of the same.

"I think this proposition is undoubtedly true, because it could not be plausibly argued that a bill for specific performance to compel the building of the railroad would lie, and a suit on a supposed covenant would not furnish adequate relief. The only damages recoverable in such a suit, so far as I am able to see, would be the difference in the market value of the property with the railroad and without the railroad. Mobile & Montgomery Railway Company v. Gilmer, 85 Ala. 422, 5 So. 138.

"Failure to obtain reduced freight rates and failure to have competitive railroad facilities could not be considered as elements of damage, except perhaps as such circumstances bear on the value of the property under the two different conditions. Complainant could not even recover the value of the property included in the right of way, nor for the inconvenience of having its property divided (these things being voluntarily conveyed away), as it could in a condemnation proceeding. It is perfectly plain, I think, that the complainant could not get the equivalent or anything near the equivalent in damages of the benefits which would result from the construction and operation of the road.

"Now it is also undoubtedly true that the considerations just mentioned furnish no reason for reading something into the deed that is not expressed; but they are persuasive of the mental attitude of the parties at the time of making the deed, and indicate the intention of the parties. Giving the matter the most impartial consideration of which I am capable, I can reach no other conclusion than that the parties really thought the easement would not continue to burden the property indefinitely in the event that no railroad should be built. Of course I am just now speaking of actual intent as distinguished from an expressed intent.

"This leaves for consideration the more or less difficult question: Has the purpose or intent that the easement should cease to exist in case of a failure to build the road found adequate expression in the document which they have caused to be executed as an expression of their purposes and intentions in the transaction? I am unable to give any other reasonable construction to the recitals of the deed which I have set out than that the parties meant by those terms to express this idea that the easement should continue to exist only for the purpose of a railroad to be actually constructed, and only in the event the railroad then contemplated should be built and operated.

"It is true that it has been frequently said by the courts that conditions subsequent, like forfeitures, are not favored. And the reason given is that they tend to destroy the estate granted, and in many instances, when rigorously exacted, work hardships scarcely reconcilable with good conscience. This would undoubtedly be true in those cases when the grantee or beneficiary had parted with a valuable consideration for the grant. In many cases the forfeiture would work a hardship. In such cases no doubt a court will not act to the detriment or hardship of a grantee until the court's duty to do so is clear. But when the conveyance is purely voluntary, and no detriment to the grantee appears, and the whole purpose of the grant has failed, and, instead of a benefit to the grantor, there is a positive detriment to him, there would seem to be nothing to cause the court to hesitate for fear of injuring the grantee. In such case the whole reason of the rule fails, and I apprehend the principle announced by Chancellor Kent, and so often quoted by courts, would prevail, namely: That 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 to the deed will after all depend less upon artificial rules than upon the application of sense and sound equity to the object and spirit of the contract in the given case. 4 Kent, 125.

"This is really not so much a rule of construction as a mere declaration of policy that the court will not enforce a hard bargain so long as it is not clearly its duty to do so, and, on the other hand, that it is inclined to do what justice and good conscience require, unless its duty to the contrary is clear; the two propositions being identical. Courts have no antipathy to conditions subsequent, except in those cases where substantial justice can be accomplished in some other way, and the enforcement of them would be inequitable.

"At one time it seemed to be supposed that some special form of condition or a clause for re-entry was essential to the creation of a condition subsequent. I apprehend that the modern trend of the decisions is that no form of expression is essential so long as the expression used discloses that thereby the grantor and grantee meant that in a certain contingency the estate or right granted should cease to exist. It has been held that a conveyance for a certain purpose created a condition subsequent,...