Trustees of Howard College v. McNabb

• Decision Date: 08 June 1972
• Docket Number: 6 Div. 898
• Citation: 263 So.2d 664,288 Ala. 564
• Parties: TRUSTEES OF HOWARD COLLEGE, a Corporation (Now Samford University, a Corporation), et al. v. J. G. McNABB et al.
• Court: Alabama Supreme Court

Page 664

263 So.2d 664

288 Ala. 564

TRUSTEES OF HOWARD COLLEGE, a Corporation (Now Samford University, a Corporation), et al. v. J. G. McNABB et al.

6 Div. 898.

Supreme Court of Alabama.

June 8, 1972.

Rehearing Denied June 29, 1972.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes and C. John Holditch, Birmingham, for appellants.

Barber, Johnston & Holmes, Birmingham, for appellees.

BLOODWORTH, Justice.

This declaratory judgment action was filed by appellees in the circuit court of Jefferson County, in equity, seeking to establish the respective rights of the parties in an 85 acre tract of real estate known as the Edgewood Lake property.

This land is generally located in or near the City of Homewood, Alabama, between North Lakeshore Drive and South Lakeshore Drive (on the north and south), and between property owned by Samford University (on the east), and Green Springs Highway (on the west). From the 1920's to the 1940's, the property was the site of Edgewood Lake, which has since ceased to exist.

Appellees-complainants, J. G. McNabb and others, are owners of homes adjoining the subject property. Appellants-respondents are the Trustees of Howard College (now Samford University) which presently owns the property. Also, joined as respondents in the bill were J. D. Pittman and Edgewood Development Company. (We may hereinafter refer to 'Howard College' as 'Samford University,' or as 'the college').

The contention between the parties is as to the effect of certain terms, conditions, or restrictions which were incorporated by reference in the quitclaim deed from Investors Syndicate to Howard College conveying the subject property in 1947. (At times the parties refer to the restrictions as 'covenants' and so shall we.)

The trial court entered a final decree which placed upon Samford University the obligation to perform one of the two affirmative covenants (paragraph 1 hereinbelow) and to refrain from violating certain portions of the negative covenant (paragraph 2 hereinbelow). The other affirmative covenant (paragraph 3) was held invalid. The Trustees of Samford University appeal from this decree, except for that portion which held paragraph 3 to be invalid.

We are of the opinion that the trial court erred in decreeing that the two covenants are binding on Samford University, and therefore conclude that the trial court's decree must be reversed in this respect.

Sometime in the early 1920's (the exact date being unclear from the record), the old Birmingham Motor and Country Club built a dam across Shades Creek creating Edgewood Lake, sometimes referred to as Shades Lake. In 1926, a corporation known as Lake Shore Estates Company purchased approximately 500 acres on the periphery of, and, Edgewood Lake. From 1926 to 1930, Lake Shore Estates Company built and sold houses in a subdivision located north of the lake, known as Lake Shore Estates. The testimony indicated that there was a problem with flooding during this period, but that there was never a break in the dam and the lake remained intact.

During the early 1930's, Lake Shore Estates Company began to encounter financial difficulties. A substantial portion of the Edgewood Lake property had been mortgaged to Kamram Development Company. In 1932, this mortgage was foreclosed. At the foreclosure sale, the property was purchased by Investors Syndicate, Inc. Subsequently, certain additional lots, not included in this mortgage, were purchased by Investors Syndicate.

On November 15, 1940, Investors Syndicate conveyed Edgewood Lake, then comprising some 127 acres, to Jefferson County by a quitclaim deed. After the granting clause, the deed contained the following language:

'It is understood and agreed by and between the parties hereto, that said property in conveyed subject to the following terms, conditions, restrictions and limitations:--

'1. That said property shall be used as a parkway only. The grantee agrees to beautify and use the property hereby conveyed as such a parkway and the grantee shall have full charge and control of said property for such purpose, use and beautification.

'2. It is agreed that said property shall not be used as a public park or amusement place; that no boats shall be permitted on said lake or property; that there shall be no swimming, hunting or fishing on or in said lake or property; that no amusements or entertainments of any kind shall be permitted or maintained on said property; that no structures or buildings shall be placed or maintained on said property without the written consent of the Investors Syndicate; that said property or said lake shall not be used as a picnic grounds; that no one shall be permitted to camp or reside on said lake or property or engage in any business or undertaking thereon, and that there shall be no parking of automobiles or other vehicles thereon. The grantee agrees not to permit said lake or property to be used in violation of the terms set forth in this paragraph. The terms, conditions, restrictions and limitations set forth in this paragraph shall constitute and be covenants running with the said property hereby conveyed.

'3. It is the desire of the undersigned that said lake and dam be maintained and the undersigned Jefferson County does hereby agree to maintain said lake, dam and property herein conveyed.

'4. It is further agreed by and between the parties hereto that the Investors Syndicate and the owners of property abutting said lake shall have the right to enforce the terms, conditions, restrictions and limitations herein set forth.

'5. It is further agreed that if the said terms, conditions, restrictions and limitations herein set forth are violated, the Investors Syndicate shall, at its option, have the right to declare this conveyance null and void, and thereupon this conveyance shall become null and void, and the title to the property herein conveyed shall revert to and immediately vest in the Investors Syndicate, and the rights hereunder of Jefferson County, said owners of abutting property, and all other persons shall be immediately terminated and become null and void, except that the terms, conditions, limitations and restrictions set forth in paragraph two shall be and remain in full force and effect.

'6. By joining in the execution of this instrument, Jefferson County does hereby agree to the terms, conditions, limitations and restrictions set forth above. It is also agreed by and between the parties hereto that no action or claim shall be maintained by Investors Syndicate against Jefferson County for the breech by it of any of the terms, conditions and agreements herein set forth, or for the failure to maintain the said dam or enforce the terms, conditions and restrictions herein set forth, except that in the event the property hereby conveyed reverts to the Investors Syndicate and it becomes necessary for the Investors Syndicate to file suit to remove any cloud upon its title to the property hereby conveyed, it shall have the right to institute such a proceeding. It is also the intention of the parties hereto that no other person, firm or corporation shall have the right to maintain any claim or action against either of the parties hereto for the violation of any of the terms, conditions or agreements herein set forth, provided that nothing in this paragraph contained shall be deemed to limit or restrict the maintenance of any action or claim for the enforcement of, or for a breach, of any of the terms, conditions, restrictions, limitations and agreements in this agreement set forth against any other person, firm or corporation. It is agreed that Jefferson County shall have the right to convey the property herein described to the Highway Department of the State of Alabama.'

Subsequent to this conveyance, the dam broke and the lake drained. Some of the testimony indicates that the dam was repaired the first time it broke, but later gave way again. In any event, the lake ceased to exist in the mid-1940's. Mr. H. A. Snow, Jefferson County Engineer, testified that the lake's demise was largely due to the radical changes in the physical makeup of the watershed brought on by urban development. According to Mr. Snow, the extensive building and paving on Shades Mountain, and the surrounding areas, prevented the run off water from soaking into the ground, as it did when the area was covered with natural vegetation. This caused the lake to dry up in dry weather and to flood so extensively during heavy rains that the dam could not contain the excess water.

On June 12, 1947, Investors Syndicate conveyed by quitclaim deed all of its right, title, interest, and claim in the realty to the Trustees of Howard College, its successors and assigns, for a consideration of five dollars. This deed contained the following provisions, viz:

'It is understood and agreed that the above described property is quit claimed unto the grantee herein Subject to all the terms, conditions, restrictions and provisions set forth in that certain deed executed by the grantor herein to Jefferson County, Alabama, under date of November 15th 1940 * * *.' (Our emphasis)

According to Mr. Frank Bainbridge, the attorney for Investors Syndicate, 'The failure (on the part of the county) to maintain the lake and to beautify the property injured the Syndicate property, abutting property, south of the lake and that is the reason they deeded it to the Trustees of the College, whatever rights they had in it.'

On the 29th of July, 1947, Jefferson County also quitclaimed its interest in the property to the Trustees for a consideration of one dollar. After describing the property, the deed provided, viz: '(S)ubject to all easements, restrictions and rights of way now imposed upon said land or the use thereof.'

At the time Howard College acquired the property, the dam was almost completely washed away and the lake bed had become a swampy and marshy area. The testimony indicates there was an area of...