South & N.A.R. Co. v. Highland Ave. & B.R. Co.

• Citation: 24 So. 114,119 Ala. 105
• Parties: SOUTH & N. A. R. CO. v. HIGHLAND AVE. & B. R. CO. [1]
• Decision Date: 16 June 1898
• Court: Supreme Court of Alabama

24 So. 114

119 Ala. 105

SOUTH & N. A. R. CO. v. HIGHLAND AVE. & B. R. CO. ^[1]

Supreme Court of Alabama

June 16, 1898

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Action by the Highland Avenue & Belt Railroad Company against the South & North Alabama Railroad Company. From a decree for complainant, the defendant appeals. Reversed.

The bill in this case was filed by the appellee against the appellant, for the purpose of enforcing by injunction an agreement for a right of way over a certain strip of land from Twenty-Ninth to Twenty-Fourth street, in the city of Birmingham. The facts of the case are set forth at length in the opinion. Upon the final submission of the cause on the pleadings and proof, the chancellor rendered a decree granting the relief prayed for. From this decree the defendant appeals, and assigns the rendition thereof as error.

Thos G. Jones, for appellant.

Alex T London, for appellee.

BRICKELL C.J.

The bill of complaint in this cause was filed on November 28 1889, by the appellee against the appellant, and sought to have enforced by injunction the specific performance of that part of an agreement made in July, 1887, between the Elyton Land Company and the appellant, by which the latter granted to the former, among other privileges, the right to build a track for a belt railroad, then being built, on its right of way from a point between Twenty-Ninth and Thirtieth streets, to a point 300 feet east of the east line of Twenty-Fourth street, a distance of 2,400 feet, in the city of Birmingham. This agreement, besides granting the privilege above mentioned, also gave the Elyton Land Company the right to cross the tracks of the appellant, at Thirty-Second street, at Avenue B, and at Avenue F, upon certain terms or conditions, which were that the appellant should have the right to cross the track to be constructed by the Elyton Land Company, on the right of way of appellant, between Twenty-Ninth and Twenty-Fourth streets, whenever and wherever it might desire to build sidings to manufacturing establishments, etc., and that the cost of putting in the crossings of such sidings and the crossings at Avenues B and F, and at Thirty-Second street, should be borne by the Elyton Land Company; that said crossings should be maintained and renewed by that company to the satisfaction and under the superintendence of the appellant, and, if it should fail to renew or repair the same within 30 days after notice to do so, the appellant might renew or repair the same, at the Elyton Land Company's expense; that the appellant should have preferential rights at such crossings, and could, if it deemed necessary, erect and maintain signals and employ watchmen at the Avenue B and Thirty-Second street crossings, at the expense of the Elyton Land Company. The consideration expressed in the agreement for the grant of these privileges was the compliance by the Elyton Land Company with the above terms, and the grant by it to the appellant of the right to cross a certain 35-foot strip of land, and all tracks which the Elyton Land Company might build thereon, lying north of and adjoining the right of way of the appellant, and extending from Twenty-Fourth street in a westerly direction to Eighteenth street, which strip, or a right of way over which, was stated in the agreement to belong to the Elyton Land Company. The Highland Avenue & Belt Railroad Company, the complainant and appellee, has succeeded to all the rights of the Elyton Land Company under this agreement.

This case came before the court at a prior term, on an appeal from a decretal order overruling defendant's demurrer to the bill. South & N. A. R. Co. v. Highland Ave. & B. R. Co., 98 Ala. 400, 13 So. 682. It was then decided that it appeared from the face of the agreement that there were mutuality of obligation and equitable remedy for its enforcement, and adequacy of consideration, and that the agreement was such as a court of equity could specifically enforce. Since that decision an important amendment to the bill has been made. The original bill averred that the Elyton Land Company had the legal title to a strip of land 35 feet in width lying north of, parallel to, and adjoining the South & North Company's right of way, extending from Twenty-Fourth street to Eighteenth street, and had a right of way over said strip, and that it was necessary, in order to reach this strip, to build a track along defendant's right of way as above described, and that it was for the purpose of reaching its own right of way over this strip that it procured the agreement. It now appears from the amendment that said company did not own this strip at the time the agreement was made, or at the time the bill was filed, and it clearly appears from the evidence in the record, and the decisions of this court, rendered since the agreement was made and the original bill was filed, that it did not own a right of way over it, but, on the contrary, that the defendant owned the exclusive right of way over the same. It does not appear, however, that any demurrer was interposed after this amendment was filed, and it is not therefore necessary to re-open the questions decided on the former appeal. The case now comes before us on an appeal from a final decree on the pleadings and evidence granting the relief prayed for.

When this agreement was entered into, in July, 1887, the Elyton Land Company was engaged in building a belt railroad in and around the city of Birmingham, for the purpose of doing a transfer freight business; that is, transferring freight cars from one railroad to another, or to and from manufacturing industries and the various railroads. In the construction of this road, if it had authority under its charter to construct it, it had the right, upon making just compensation, "to intersect, connect with, or cross and other railroad." Const. art. 14, §§ 7, 21. It also had the right to take a portion of the right of way of the defendant, upon showing a reasonable necessity therefor, and that such taking would not destroy the usefulness of the right of way as a franchise, or so impair the capacity of the easement as to render it unsafe; and both of these rights could have been enforced by statutory proceedings provided for this purpose. Mobile &amp G. R. Co. v. Alabama Midland Ry. Co., 87 Ala. 501, 6 So. 404; Anniston & C. R. Co. v. Jacksonville, G. & A. R. Co., 82 Ala. 297, 2 So. 710. If, however, the Elyton Land Company had no authority under its charter to construct such a railroad, it had no power to receive and hold, either by grant or by condemnation, land for the use of such railroad, and therefore could not, by resorting to such statutory proceedings, have condemned said crossings or right of way, if such proceedings had been resisted by the defendant. The court would not have aided it to acquire land which it had no authority to hold, although it might not interfere to deprive it of such land after its acquisition, except at the instance of the state. Case v. Kelly, 133 U.S. 28, 10 S.Ct. 216; Electric Co. v. Simon, 20 Or. 60, 25 P. 147; s. c. 10 Lawy. Rep. Ann. 251, and notes. It is manifest from the evidence that the defendant, and presumably the Elyton Land Company also, executed the agreement in the belief that the latter could have condemned the crossings and right of way for which the agreement provides. Smith, the vice president and active manager of the defendant company, who executed the agreement on the part of the defendant, testifies that, for several months prior to the execution of the agreement, he had been subject to great anxiety as to the probable action of the Elyton Land Company. He had learned indirectly that it contemplated the construction of a number of crossings that would be very injurious to the South & North Alabama Railroad Company,-among them, crossings in the vicinity of Thirteenth and Fourteenth streets, near the Alice Furnace and the Birmingham Rolling Mills,-and had given the officers and attorneys of his company instructions to resist any attempt to effect crossings at these points. "Long negotiations ensued; and, as the Elyton Land Company had secured legislative authority to condemn crossings with other railroads, I thought at the time that it might be for the interests of the South & North Alabama Railroad Company to accept the terms of the pretended agreement, which terms did not involve a crossing in the vicinity of Thirteenth and Fourteenth streets, and, while it did provide for a crossing at Avenue B and Ninth street, I was of the opinion that the Elyton Land Company would never construct such crossing. I did not at the time know that one of the objects of the Elyton Land Company, in desiring to construct the track along the right of way of the South & North Alabama Railroad Company from a point near Twenty-Ninth street to Twenty-Fourth street, was to secure a connection with the tracks approaching the Union Passenger Station." Now, it clearly appears, as we shall show hereafter, that the Elyton Land Company had no power to construct a freight belt railroad, and therefore could not have condemned said crossings or right of way. As both parties believed it had such power, and the defendant believed that the exercise of the power would be of great injury to its interests, if directed to the condemnation of crossings at certain points, it is evident that the agreement was in the nature of a compromise between the parties, such as is of frequent occurrence between railroad companies, by which both would avoid the expense and delay of litigation, the Elyton Land Company would obtain what it desired by making concessions to the defendant, and the defendant would escape the threatened injury by making concessions which, though...