South & North Ala. R. Co. v. Highland Ave. & B.R. Co.

• Decision Date: 27 July 1893
• Court: Alabama Supreme Court
• Parties: SOUTH & NORTH ALA. R. CO. ET AL. v. HIGHLAND AVE. & B. R. CO. ET AL

13 So. 682

98 Ala. 400

SOUTH & NORTH ALA. R. CO. ET AL. v. HIGHLAND AVE. & B. R. CO. ET AL

Supreme Court of Alabama

July 27, 1893

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

Action by the Highland Avenue & Belt Railroad Company and others against the South & North Alabama Railroad Company and others for the specific enforcement of a contract. From an order overruling their demurrer to the bill, defendants appeal. Affirmed.

Hewitt Walker & Porter and Jones & Falkner, for appellants.

Alex. T. London, for appellees.

STONE C.J.

In this opinion we will abbreviate the names, and designate the parties as the "South & North Company" and the "Highland & Belt Company." Each is an incorporated railroad company, in active operation, and the bill in this case was filed by the latter (the appellee) to compel the specific performance of an agreement entered into in the year 1887. The Elyton Land Company made the contract with the South & North Company, but subsequently sold out its railroad enterprise and interest in the contract to the Highland Avenue & Belt Railroad Company, which instituted this suit in November, 1889. The case comes before us on appeal from a decretal order of the chancellor overruling a demurrer to the bill as amended. The pleadings do not question the making of the contract, nor does the South & North Company deny that it has failed to keep its contract. The defense it seeks to make is that the contract is not such a one as that chancery will enforce its specific performance, for two reasons: First, that is not mutual, in that sense which equitably justifies its specific enforcement; and, second, that its obligations are of such a character that chancery cannot compel their performance. The track of the South & North Company extends entirely through the city of Birmingham, its general bearing being from south to north, but making considerable curves and deflections. The right of way is wide, with its main track near the center thereof. In laying out the city, a broad avenue was left for railroad tracks, with a bearing from east-northeast to west-southwest. In this avenue is the common passenger depot and along it the South & North Company, as well as other railroads, have their main tracks. The South & North Company enters this avenue at Thirteenth street, and leaves it about Twenty-Sixth street. Along the right of way of the South & North Company, bounding it on the northwest, the Highland & Belt Company owns a strip of land 35 feet wide, which commences about Twenty-Fourth street, and extends westwardly, bordering the right of way of the South & North Company, to or beyond Eighteenth street, which is beyond the passenger depot. But the Highland & Belt Company owns no land, or strip of land, extending eastward beyond Twenty-Fourth street. A map and submaps appear to have been made exhibits to the bill, and many references are made to them, and to marks upon them. These are not furnished with the transcript before us. True, we have a map of the plan of the city, but it is without very many of the marks mentioned in the bill, and it is therefore in some respects unintelligible to us. But, as we understand the real contention in this case, it may be thus stated: The Highland & Belt Company has constructed its track, coming south-wardly, until it has reached the right of way of the South & North Company, at or near Twenty-Ninth street, and claims the right to continue the construction of its track along and over the right of way of the South & North Company, until it reaches and connects with its own 35-feet strip, at or near Twenty-Fourth street; this, as it appears, for the purpose of reaching the passenger depot from that direction. The South & North Company refuses to permit it to thus lay its track on its right of way. The part of the agreement of 1887 which this bill seeks to have specifically enforced, in what it severally requires of the two corporations, so far as it bears on the question we have stated, may be thus summarized: The South & North Company granted to the Highland & Belt Company the right to extend its track from a point near Twenty-Ninth street across the South & North Company's switch leading to Baxter Stove Works, along said right of way, 6 1/2 feet distant from, east of, and parallel to the westwardly line of said right of way, to a point about 300 feet east of the east line of Twenty-Fourth street, (the beginning of Highland & Belt Company's strip,) to be located on the South & North Company's right of way, not exceeding 2,400 feet in length; the crossing of the switch leading to Baxter Stove Works to be put in and maintained at cost and expense of the Highland & Belt Company; the South & North Company to have the right to cross the tracks to be constructed on its said right of way wherever and whenever it may desire to build sidings to any manufacturing establishment, warehouse, or other industrial enterprise; the cost of putting in and maintaining the crossing of such sidings with the track of the Highland & Belt Company to be borne by the latter company. The contract further provided that the South & North Company should have the right to cross said track of the Highland & Belt Company when necessary for convenient ingress and egress to and from said sidings that may hereafter be constructed by the South & North Company to manufacturing establishments, warehouses, or other industrial enterprises. It was provided that all crossings that might be made should be constructed and maintained at the cost of the Highland & Belt Company. The South & North Company was guarantied preferential rights over the Highland & Belt Company at all the crossings to be constructed. In consideration of these grants and concessions, the Highland & Belt Company agreed and stipulated that the several crossings above provided for and to be constructed should be constructed and maintained by it, at its exclusive cost, under the superintendence and to the satisfaction of the South & North Company, which was to be the judge of when and where crossings should need renewals and repairs; and the Highland & Belt Company agreed that the renewals or repairs would be made promptly, and, if they failed to make them within 30 days from the time of notification from the South & North Company, then the latter company should have the right to make them at the expense of the Highland & Belt Company; and the Highland & Belt Company granted to the South & North Company the right and privilege to cross its right of way, and all tracks that were then constructed, or might thereafter be constructed, thereon, south or west of Twenty-Fourth street, whenever it might become necessary for the South & North Company to construct switches to gain access to manufacturing establishments, warehouses, or other industrial enterprises that then were, or might thereafter be, constructed on adjacent property.

It is contended for appellants that this contract is not just and equitable in all its parts, and that, therefore, the chancery court should not compel its specific performance, but should leave the Highland & Belt Company to its action at law, for the recovery of damages for the breach of the contract by the South & North Company. It may be that the contract does not secure precisely equal benefits to the two corporations. It may be that the concessions made to the Highland & Belt Company are more valuable, when viewed from the standpoint of the present time, than are the grants made by it to the South & North Company. Of this, however, when the contract, as in this case, furnishes no standard or measure for estimating the relative advantages, it would be extremely hazardous for the court to attempt a solution. Any conclusion we might reach would be the merest conjecture. We cannot be presumed to know what prospective profit the construction and maintenance of the Highland & Belt Company would be to the ...