Thornton v. Sheffield & B.R. Co.

• Decision Date: 15 May 1888
• Citation: 4 So. 197,84 Ala. 109
• Parties: THORNTON v. SHEFFIELD & B. R. CO.
• Court: Alabama Supreme Court

4 So. 197

84 Ala. 109

THORNTON v. SHEFFIELD & B. R. CO.

Supreme Court of Alabama

May 15, 1888

Appeal from chancery court, Colbert county; THOMAS, COBBS, Judge.

The appellant, Ella Thornton, a married woman, by her next friend, filed a bill in chancery praying for compensation for the right of way used by the Sheffield & Birmingham Railroad Company, and also for an injunction until compensation was paid. The eighth ground of demurrer set up that complainant was estopped from making claim for compensation, by a written agreement set out in full in the opinion. Demurrer sustained on this ground, and complainant appealed.

Simpson & Jones, for appellant.

J B. Moore, for appellee.

STONE C.J.

The appellee railroad company surveyed its route, and had partially constructed its road, beginning at Sheffield, in Colbert county, and extending south-eastward towards Birmingham. When this bill was filed the road was completed equipped, and in running order for a distance of 40 or more miles, in Colbert and Franklin counties, running through the lands of the female complainant, after noticed. On the 8th day of October, 1881, Mrs. Thornton, then Mrs. Henry, together with her husband, entered into an agreement, partly printed and partly written, a proper interpretation of which is necessary to a decision of this cause. This agreement was signed without witnesses, but was, on the day of its date, acknowledged and certified in form required to convey a homestead, and also to convey lands owned by a married woman. Code 1886, §§ 1790, 1802, 1894, 2508. The instrument was duly recorded in the proper office. We insert a copy of the contract, italicizing the written words so as to distinguish them from the printed matter. The contract is as follows: "Know all men by these presents, that whereas, Eugene C. Gordon, of the state of Mississippi, and his associates, of the states of New York, Georgia, Alabama, Mississippi, and Tennessee, propose to build a railroad from some point on the Alabama Great Southern Railroad, or from some point on the Memphis & Charleston Railroad, into or through the counties of Tuscaloosa, Walker, Winston, Marion, Franklin, Colbert, and Lauderdale, state of Alabama: and whereas, the building of said railroad would, in our opinion, enhance the value of our farming and timbered lands, and the production thereon: and whereas, the building and operating of said railroad would, in our opinion, become a convenience and advantage in various ways to our property and our labor, in furnishing facilities for transportation and more rapid communication to and from the markets of the country: Now, for and in consideration of any and of all these benefits and advantages which, in our opinion, would accrue to us from the building of said railroad, should the said Gordon and associates, within four months from this date, begin the work of surveying or locating or building said railroad, and shall, within three years from this date, so complete the said railroad, so as to have it in operation [to the] through the counties above named, [county lines between __________ and __________ counties:]

Now, in that event, in consideration of the said benefits and advantages likely to accrue to us and to our property, as hereinbefore referred to, from the building of the proposed railroad, we, Gus A. Henry and Ella W. Henry, his wife, of the county of __________, state of Alabama, do hereby agree and bind ourselves, our heirs, administrators, executors, and assigns, to make unto the said Eugene C. Gordon and his associates, and upon the compliance of the said Gordon and associates with the terms of this contract, [hereby vest the said Gordon and his associates, with good and sufficient title to all the coal, iron, coal-oil, in or upon or in anywise belonging to the following described lands or real estate, to-wit:] we give the right for the said railroad to enter our plantation and go through the same in constructing the said road, free of charge, provided it does not interfere with the buildings. [And in addition to the above-described real estate, we hereby bind ourselves and legal representatives to make good and sufficient titles, in fee-simple, to all the following described lands or real estate, to-wit: *** together with the right to enter upon the said lands to prospect for said mineral substances, and to mine and utilize the same, if they so desire;] also we hereby grant unto the said Gordon and his associates the right for road and railroads across our lands, free of charge, and the free use of timber necessary for railroad or mining purposes. It is expressly understood that any and all of the above-specified donations are to be made by the undersigned to aid the said Gordon and his associates in the construction of said railroad, in consideration of the benefits and advantages likely to accrue to us from the building of the same. It is further expressly and specially understood that no such deed to the lands as above described [or to the coal, iron, coal-oil, and other mineral interests owned by us, as above specified] is to be made as described in this instrument if the said Gordon and associates should fail to build such portion of the road, and do the work as is required by the terms of this instrument; nor, on the other hand, the said Gordon and his associates shall not be held liable for damages should they fail to build said railroad.

The object of thus deeding, or thus binding ourselves to deed certain lands, [and our coal, iron, coal-oil, and other mineral interests] on certain conditions, to the said Gordon and his associates, is hereby expressly declared to be to induce the said Gordon and his associates to build the said railroad, the consideration to the undersigned being the supposed benefits to accrue to us from the increased circulation of money along the said railroad line in building and...