Rehearing
Denied May 11, 1909.
Appeal
from City Court of Birmingham; C. W. Ferguson, Judge.
Action
by the Tuskegee Land & Security Company against the
Birmingham Realty Company. From a judgment for defendant
plaintiff appeals. Reversed and remanded.
The
complaint, as amended, is as follows:
Count
1: "The plaintiff, a corporation, claims of the
defendant, a corporation, $3,000 damages for the breach of
the covenant in the agreed conveyance executed by defendant
to plaintiff on the 1st day of December, 1903, by which deed
which is duly recorded, defendant for a valuable
consideration conveyed to plaintiff certain real estate in
the city of Birmingham, Jefferson county, Ala., described as
follows: [Here follows the description, the material part of
which is set out in the opinion.] And plaintiff says that
said lot or parcel so conveyed by said deed abutted or
fronted on Avenue A, which was a public street in the city of
Birmingham, Ala., which had been mapped and laid off over 30
years before the date of said deed, and lots sold with
reference to said street, and the use of the said street
dedicated to the public, and that the conveyance of said
tract included the right to the unobstructed passage of said
street for safe and commodious passage over and across said
street or avenue, and of egress from and access to said lot
over and along said street, which was a right appurtenant to
said lot so conveyed by the deed. And plaintiff says that the
deed so executed by the defendant to plaintiff contained
among other things, the following covenants: 'And the
Birmingham Realty Company, for the consideration aforesaid
hereby covenants and agrees that it is seised of an
indefeasible estate in fee simple in and to the premises
aforesaid, that it has a good right to sell and convey the
same, that the same are free from all incumbrances, except
the mortgage deed of trust to the Union Trust Company in New
York, and that it will warrant the title hereby conveyed
against all persons whomsoever lawfully claiming the
same.' And plaintiff says that the covenants in said deed
were broken by defendant, and there are breaches thereof in
this: That defendant was not, at the time of the execution
and delivery of said deed, seised of an indefeasible estate
in fee simple in and to the premises above described in this
that at and before the execution of and delivery by defendant
to plaintiff of said deed the defendant did, on, to wit, June
10, 1902, execute and deliver to the Birmingham & Atlanta Air
Line Railway, its successors and assigns, a written
conveyance of the right to lay tracks and forever operate
trains thereon along Avenue A or First Avenue South, on which
avenue the premises conveyed to plaintiff by defendant abut;
and said railway, or its successor, the Atlanta & Birmingham
Air Line Railway, has taken possession of part of said Avenue
A in front of said lot and laid two railroad tracks thereon,
over which it operates cars by means of steam locomotives,
one of which tracks is between the center of said avenue and
plaintiff's said lot conveyed by said deed. And plaintiff
says that by reason of the construction of said railway, and
the operation of cars and trains thereon, plaintiff is denied
either reasonable or safe access to its said premises, and
said release and consent executed by defendant for laying the
said railroad track and the operation of cars on the track
was and is an incumbrance on the title of plaintiff, by
reason of which it suffered and suffers the damages
aforesaid."
Count
2: Same as 1, down to and including the words "breaches
thereof, in this," and adds: "And plaintiff says
that the defendant did not, at the time of the execution of
said deed, have a right to sell and convey said lots,
inasmuch as said lots so conveyed by defendant to plaintiff
abut about 100 feet on Avenue A, which is a public street in
the said city of Birmingham, and the right to the unimpeded
use of said street in front of said lots was a right
appurtenant to said lots; but plaintiff says that on the 10th
day of June, 1902, and before the execution and delivery of
said deed of conveyance by defendant to plaintiff, the
defendant for a valuable consideration executed and delivered
to the Birmingham & Atlanta Air Line Railway a permit,
license, or consent in writing for said railway, its
successors and assigns, to use said avenue for railroad
purposes; that is, the defendant consented that the said
railroad company, its successors and assigns, might use said
Avenue A for railroad purposes; that is, the defendant
consented that the said railroad and its successors might
construct, maintain, use, and operate tracks of railroads
along and over said avenue opposite to and in front of said
lot conveyed to plaintiff by the deed aforesaid, and released
the said railroad company, its successors and assigns, from
any and all damages of any character whatsoever to all lots
abutting said Avenue A, including the lot conveyed to
plaintiff, and that said railroad company or its successors
built on Avenue A two railway tracks on which it operates by
means of steam locomotives, cars and trains, one track being
between the center of said avenue and said lot, thereby
depreciating the value of said lot and depreciating the
rental value thereof, and rendering access to said lots less
safe, commodious, and easy, and by breach of said covenant
plaintiff has been damaged as aforesaid," etc.
Count
3: Same as 1, down to and including the words "breaches
thereof, in this," and adds: "And plaintiff says
there is a breach of the covenant in said deed in this: In
that the said lands conveyed by the said deed were not free
from incumbrance, except the mortgage deed of trust to the
Union Trust Company in New York, in this: That the defendant,
before the execution and delivery of the deed of conveyance
of said lot to plaintiff, had for a valuable consideration
consented in writing, on, to wit, June 10, 1902, that the
Birmingham & Atlanta Air Line Railway Company, its successors
and assigns, might construct, maintain, use, and operate
tracks of railroads along and over Avenue A, and did release
said railroad company, its successors and assigns, from any
and all damages of any character whatsoever to the lots
described in said deeds to plaintiff abutting on said Avenue
A or contiguous thereto, which defendant might suffer from
the construction, maintenance, use, and operation of said
tracks over, along, and across said Avenue A. And said
railway, or its successors, have taken possession of part of
said avenue in front of said lots, and laid two tracks of
railroad thereon, over which it operates cars by means of
steam locomotives, one of which tracks is between the center
of said avenue and the lots conveyed by said deed to
plaintiff. And said railway constructed said track and so
operated trains thereon under and by virtue of an ordinance
of the mayor and aldermen of Birmingham, and that said
railway, under its charter, had authority to construct,
maintain, and operate said tracks and cars as aforesaid. And
plaintiff says that the premises described in the deed of
defendant to plaintiff abuts on said Avenue A, and the right
of ingress to and egress from and approach to said premises
over said Avenue A, which was and is a public street of said
city of Birmingham, and used by the public for over 30 years,
was appurtenant to said real estate so conveyed, and,
defendant having already conveyed the right above described
to said railway company and its successors, such conveyance
was an incumbrance on said property, whereby plaintiff was
and is damaged as aforesaid."
Count
4: Same as count 1, down to and including the words
"breaches thereof, in this," and adds: "In and
by an ordinance adopted on the 30th day of April, 1902, the
mayor and aldermen of Birmingham, then and there having the
power under and by virtue of its charter then existing, then
and there being a municipal corporation, by an ordinance duly
adopted, the said mayor and aldermen in meeting duly
assembled empowered and authorized the said Birmingham &
Atlanta Air Line Railway Company, its successors and assigns,
to build and construct along Avenue A, in said city, from
Thirty-First street, on the east side of Birmingham, Ala., to
Thirteenth street, on the west side of Birmingham, Ala., a
double-track railroad along the center of said Avenue A, in
said city, with all necessary turnouts and side tracks, and
that pursuant thereto said defendant executed and delivered
to the said railway company in writing a right, license,
power, and release of damages because of constructing and
operating said railroad along said Avenue A, in said city of
Birmingham; and plaintiff says that, pursuant to said
ordinance of the mayor and aldermen of Birmingham and said
contract of license executed by the defendant to the said
railroad company on the 10th day of June, 1902, the said
railway company constructed its double-track railway, to the
damage of plaintiff alleged in breach D, as set forth in this
count, as follows: D. And plaintiff said that there is a
breach of the covenant of warranty in the said deed, for
that, before the execution and delivery of said deed to
plaintiff, said defendant on the 10th day of June, 1902, had
for a valuable consideration executed and delivered a consent
to the Birmingham & Atlanta Air Line Railway Company, its
successors and assigns, the right to lay a railroad track
along said Avenue A, in front of the lots described in said
deed, and to operate cars and trains thereon, and release
said railway from all damages to said lot by reason of laying
said track and operating said railway, whereby...
