Walker v. Tillis

• Decision Date: 30 June 1914
• Docket Number: 975
• Citation: 66 So. 54,188 Ala. 313
• Parties: WALKER v. TILLIS.
• Court: Alabama Supreme Court

66 So. 54

188 Ala. 313

WALKER v. TILLIS.

No. 975

Supreme Court of Alabama

June 30, 1914

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Action in trepass and in trover by Bessie W. Walker against Richard Tillis. From a judgment for defendant, plaintiff appeals. Affirmed.

The following is the lease contract referred to as attached to the complaint:

This agreement made and entered into this 10th day of June 1902, by and between Bessie W. Walker and Hal T. Walker of the city of Montgomery, parties of the first part, and Frances E. Ayres of the same place, party of the second part witnesseth: That the said parties of the first part have this day leased to the party of the second part for a term of twenty years said lease commencing on January 1, 1902, and ending on December 31, 1921, 81 acres of land owned or controlled by said first parties [here follows description of the land] conditioned as follows: (1) That the party of the second part shall only cut down from said land such shrubbery or forest timber under 4 inches in diameter as he, in his judgment, may wish to cut for the purpose of beautifying said land for park purposes, and all timber cut, together with all dead timber now on said land, and all such timber as may have been cut on said land before the signing of this lease by the party of the second part, shall remain the property of the said party of the first part, and said parties of the first parts, their agents or attorney, shall have free access to the park for the purpose of removing same at any time. (2) Said land shall be used only for park purposes and a pleasure resort during the life of this lease. (3) At the expiration of this lease, the second party agrees that the said first parties shall have the right to enter into and upon said land, and repossess themselves thereof, and with all improvements of whatever kind and nature erected upon said land during the life of this lease shall revert to the first parties hereto and become their property in fee simple without process of law. (4) That for and in consideration of said lease for said lands the second party hereby binds himself, his executors, administrators, and assigns, to pay to the first parties the sum of $400 per annum, payable quarterly, as rent for said land, and has executed his several promissory notes therefor. (5) That in case of failure upon the part of the second party hereto to pay said rent when the same becomes due within 30 days thereafter, or to perform any of the other conditions or stipulations of this lease after having been given 10 days written notice of his failure to do so by the said parties of the first part then the land and all the improvements thereon at the option of first parties shall revert to and become the property of the said first parties. (6) Nothing in this lease shall be so construed as to prevent the parties of the first part from granting a right of way by deed or lease through any part of said leased land for street railway purposes.

W.A Gunter and A.A. Evans, both of Montgomery, for appellant.

Ray Rushton and W.M. Williams, both of Montgomery, for appellee.

MAYFIELD J.

Appellant sued appellee in trepass and in trover, claiming $50,000 damages for that the defendant willfully and maliciously tore down and carried away improvements consisting of houses and parts of houses and fixtures and other improvements attached to, and forming parts of, realty belonging to the plaintiff; the count in trover adding that the plaintiff had converted the same to his own use.

Count 1 was in trespass, and claimed $10,000 as actual damages for value of the structures torn down, and $40,000 as punitive damages for malicious injury and destruction of the property.

The second count claimed damages only for a willful and malicious trespass committed upon the plaintiff's freehold by the demolishing and tearing down of the property, and the removal of the same.

The third count was in trover for conversion of the fixtures and improvements after they were severed from the freehold.

The fourth count claimed damages merely for the malicious tearing down and removal of the property mentioned, which was a part of and attached to the realty.

The fifth count was like the fourth, but added that the wrongful act of the defendant was an injury to the freehold.

Counts 1 and 4, by appropriate averments, refer to, and attach as exhibits thereto, a certain lease contract made by the plaintiff with one Frances E. Ayres, which contract the reporter will set out in full. This contract was subsequently assigned by Ayres to the defendant, Tillis, who subsequently transferred his interest in the premises to the Montgomery Amusement Company, which company used the premises for two or three years as an amusement park. The stock of said company was subsequently acquired by another corporation, the Montgomery Street Railway Company, which was thereafter consolidated with the Montgomery Traction Company, and this last-named corporation operated the park until the spring of 1909. The wrongs and injuries hereinafter complained of occurred during the month of July, 1909.

At the time of the original lease by the plaintiff to Ayres the lands consisted mainly of swamp and woodlands, which were later developed into a pleasure resort.

Prior to the spring of 1909 "there were built on the premises, by the tenants, the following buildings: A dining hall, a street railway station, a theater, a dancing pavilion, a skating rink, barbecue pits, a billiard room, and a bowling alley building. There were also installed at the said park, by the tenants, several devices used solely for the amusement and entertainment of the visitors and patrons of the park. They were commonly known as 'amusement devices,' and among them were the following: A 'merry-go-round,' a 'roller coaster,' a 'Hale's touring car,' a 'revolving swing,' and a 'bowling alley.' "

This park and pleasure resort was connected on the southwest with the city of Montgomery by a street electric railroad, touching it on the southwest corner, operated by the said Montgomery Street Railroad Company, owned in whole or in larger part by the said Richard Tillis.

There was evidence to show that afterwards a rival electric railroad company was organized and operated against the said Montgomery Street Railroad Company. This company obtained from the plaintiff a right of way for an electric railroad into said park, as shown by a deed executed by the plaintiff and her husband to the said traction company.

The only connection that the defendant is shown to have had with the amusement park, or with the wrongs and injuries complained of, is that he purchased the interest of Ayres in the lease, and subsequently assigned it to the amusement company, which was absorbed by the Montgomery Street Railroad Company, which, in turn, was consolidated with the Montgomery Traction Company, and that the defendant, Tillis, owned practically all the stock of the new corporation, and that after the consolidation of the two companies, and until the spring of 1909, the park was operated by the Montgomery Traction Company.

During the spring of 1909, the patronage of the park having almost ceased on account of mosquitoes and malaria at the park, the defendant, Tillis, had a conversation with Ginnivan, the manager of the traction company, in which conversation Tillis stated to Ginnivan that he (Tillis) thought it would be better to discontinue Electric Park and build up Pickett Springs, another pleasure resort of the Montgomery Traction Company, and for him to go to work to accomplish that end. Tillis told Ginnivan that he had better remove the different devices out there, but not to remove any of the buildings or disturb them. Tillis did not tell Ginnivan anything about the railroad track, but knew that he did move it; nor were any orders given by Tillis to any one else to remove the track. There was nothing said about moving the track at that particular time. Tillis stated in his testimony that the track was used "when we needed the rails, from time to time, from early in the spring up to June, after the devices were taken away."

During the spring of 1909, prior to July 1st, Ginnivan, the manager of the traction company, tore down and carried away a "merry-go-round," and also an iron structure supported upon concrete foundations to which the merry-go-round was fixed by iron bolts and nuts. The merry-go-round was operated by a motor fastened to the foundation in such way that it could be taken loose. The electric current for operating it was brought by wires from the city of Montgomery, and connected by an arrangement above the merry-go-round. The merry-go-round was made in sections which could be easily adjusted and fastened to the concrete foundation, which was not removed. Ginnivan carried away a picket fence inclosing a swing which was one of the amusement devices; and he took down and removed the swing, a steel structure 40 feet high, supported upon a concrete foundation and attached by means of rods and nuts. Said swing was also put up in such manner that it could be removed when desired. Manager Ginnivan also removed the end of a shed in which was a device called "Hale's touring car," in order to take out the car. The shed was made of wood and canvass, without flooring, and was built especially to inclose this car. Ginnivan also tore down and carried away a "roller coaster," which was a structure 80X175 feet, consisting of posts firmly framed together, some 20 feet high; part of it was a tram track for running small cars in which persons could be seated, the cars being attached to a cable by which they were lifted or made to rise to the high points, and then, being freed from it, were carried along...