South & N.A.R. Co. v. Highland Ave. & B.R. Co.
| Citation | 23 So. 973,117 Ala. 395 |
| Court | Supreme Court of Alabama |
| Decision Date | 28 June 1898 |
| Parties | SOUTH & N. A. R. CO. v. HIGHLAND AVE. & B. R. CO. |
Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.
Bill by the Highland Avenue & Belt Railroad Company against the South & North Alabama Railroad Company. Decree for complainant. Defendant appeals. Reversed.
Thomas G. Jones, for appellant.
Alex. T. London, for appellee.
This was a bill filed by the Highland Avenue & Belt Railroad Company against the South & North Alabama Railroad Company and is in the nature of a bill for the specific performance of a covenant contained in a deed executed in the year 1872 by which the Elyton Land Company, the founder of the present city of Birmingham, conveyed to the South & North Alabama Railroad Company a strip of land 100 feet in width for the right of way of its railroad through the city, in consideration of one dollar, and the building of the railroad through the lands of the grantor. The habendum clause of the deed reads: "To have and to hold the same to themselves and for their own proper use, for the right of way of their railroad, forever, or so long as the same may be occupied or used by the party of the first part [the railroad company], or their successors or assigns, for the purposes aforesaid: provided, however, that any other railroad running into or through the city of Birmingham shall have the right to run a parallel track upon and along the same right of way." The bill prays for a decree declaring the complainant entitled to build a parallel track on said right of way; that the defendant be required to designate the place where such track may be built, and, upon its failure for a reasonable time to do so, that it be referred to the register to ascertain on what part of said right of way said track may be built; and for an injunction to restrain the defendant from interfering with the construction of said track. The Elyton Land Company, at the time of the execution of the deed, had just founded the present city of Birmingham, and was the owner of all the land surrounding the right of way, and upon which the city is now built. The appeal in this case is from a decretal order overruling a motion to dismiss the bill for want of equity, and several grounds of demurrer interposed to the bill. Counsel for the defendant, besides relying upon the want of equity in the bill, urge the following objections to its sufficiency: First, because it does not show that complainant's railroad falls within the class of railroads intended to be benefited by the deed; second, because it does not show that the right of way was not already necessarily used and occupied for railroad purposes at the time the complainant demanded the right to build a parallel track thereon; third, because it does not locate the place where complainant seeks to lay its track; fourth, because the bill does not tender compensation; fifth, because the proviso contained in the deed is void for repugnancy to the other clauses of the deed.
In considering the motion to dismiss the bill for want of equity, the attention must be directed wholly and exclusively to the equities of the bill, not to its frame, or the want or misjoinder of parties, or other matters which, if a demurrer were interposed, would be regarded as waived, if not specially assigned. The motion should prevail only when, admitting all the facts apparent on the face of the bill, whether well or illy pleaded, the complainant can have no relief whatever. If it is apparent, upon a proper statement of the facts and an appropriate prayer, that equitable relief may be obtained, the motion should be overruled, and the respondent put to his demurrer. Hooper v. Railroad Co., 69 Ala. 533. Assuming, so far only as is necessary in the determination of the equity of the bill, that the railroad of the complainant is such a railroad as was in the minds of the parties at the time the deed was executed, and such as was intended to be benefited by the provision securing to "other railroads" the right "to run a parallel track upon and along the same right of way," we cannot doubt that the bill contains equity. If its averments do not show clearly and affirmatively the title of complainant to the relief asked as a beneficiary under the deed, they may be aided by amendments. It does not affirmatively show, and we do not judicially know, that its railroad is not such as was in the contemplation of the parties. In the case of Elyton Land Co. v. South & N. A. R. Co., 100 Ala. 396, 14 So. 207, we had occasion to construe this same deed, for the single purpose of determining whether the proviso contained therein was technically a condition, the breach of which, by the grantee's refusal to allow another railroad to build a parallel track on the right of way, would cause a forfeiture, and authorize the grantor to recover possession. We there decided that it was not a condition, but a covenant or limitation. Whether it be construed as a covenant or as a limitation is immaterial. Its effect upon the rights and obligations of the parties thereto is the same. It operated to create, in favor of such other railroads as might seek in the future to run into, or into and through, the city of Birmingham, an equitable easement in, or right to build a parallel track upon and along, the right of way granted to appellant; and, by its acceptance of the deed, appellant became bound to comply with its stipulations. Joy v. St. Louis, 138 U.S. 1, 11 S.Ct. 243, and 45 Am. & Eng. R. Cas. 655; Chicago, St. P. & K. C. Ry. Co. v. Kansas City, St. J. & C. B. R. Co., 52 F. 179; Whitney v. Railway Co., 11 Gray, 359.
That a court of equity has jurisdiction, at the instance of a beneficiary under such a covenant, to enforce the specific performance of the covenant, by declaring such beneficiary entitled to the use of the right of way, and enjoining any interference with the exercise of the right to use it, even though such beneficiary be not specifically named in the agreement, and was not in existence at the time it was made, we regard as settled by the first two cases above cited. In Joy v. St. Louis, supra, there was a tripartite agreement between the commissioners of a public park near the city of St. Louis, the St. Louis County Railroad Company, and the St. Louis, Kansas City & Northern Railroad Company, by which the park commissioners gave to said two companies a right of way through said park, and the railroad companies bound themselves to permit other railroads, not named in the agreement, to use the right of way, upon paying such fair compensation as might be agreed upon by such companies. One of the original companies forfeited its rights, and the other took possession of the right of way, built its tracks thereon, and operated its road over it; occupying, in the course of time, the whole of the right of way with its tracks. Subsequently the St. Louis, Kansas City & Colorado Railroad Company, desiring to enter St. Louis, demanded of the receivers of the company in possession permission to run its cars over the right of way and over the tracks of said company, claiming the right under the provisions of said agreement, to which it was not a party; and its claim being denied, and demand refused, it then filed a bill praying the court to enjoin and restrain respondent from interfering with its use of said right of way and tracks. It was held, both in the circuit court (Central Trust Co. of New York v. Wabash, St. L. & P.
Ry Co., 29 F. 546), and in the United States supreme court on appeal, that the covenant to permit other railroads to use the right of way created an equitable easement in favor of such railroads, not only in the right of way, but also in the tracks, that it became binding on the defendant company by its acceptance thereof, that it was sufficiently definite in its terms to be specifically enforced, and that there was mutuality of remedy between the parties to the suit. It was said in the opinion that it would be inequitable to permit the defendant company to use the right of way through the park, and at the same time deprive the city of St. Louis, the trustee of the public, of the benefit of the use by other railroad companies of the right of way. It was further said: While the public is not complaining here, and is not a party to the agreement, yet we think a broad view of the case, the subject-matter of the contract, the situation in which the parties to it stood with reference to the future public interests, and the object sought to be accomplished by the grantor, known to the grantee, require a like consideration of...
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