85 Fla. 126 | Fla. | 1922
Lead Opinion
This action was brought to recover as damages the value of land conveyed by the plaintiffs in error to the predecessor of the railroad company for a railroad right of way “also sufficient amount of land for depot,” the consideration being “said company agrees to receive and receipt for all freight to and from said depot on regular shedule time. Said depot to be known as Terra Oeia Depot. Said right of way for depot and side track shall be one hundred wide on the south side of the track by two hundred and fifty in length the Terra Teia Spur track of said” company, the claim being also for damages for the value of other land of the plaintiffs alleged to have been
It appears that the Railroad Commissioners ordered a depot to be established about one mile away and this resulted in the practical abandonment of the depot agreed to be used. In the course of the trial the plaintiffs took a non-suit with a bill of exceptions under the statute.
Without discussing the pleadings and proceedings in detail the matter will be disposed of by holding that in view of the abandonment of the depot on the land conveyed by the plaintiffs for that purpose, the plaintiffs have a right of action for the fair value of the land conveyed to and appropriated and retained by the defendants or its predecessors in interest, but not for consequential damages that may result to the plaintiffs in matters of business convenience and decreased values of plaintiffs’ contiguous property, &c., from a change of the site of the depot, such consequent losses if any resulting from the order of the Railroad Commission, a governmental agency having authority in the premises. See 156 Ky. 27, 160 S. W. Rep. 759, 49 L. R. A. (N. S.) 848. See also 54 Fla. 635, 45 South. Rep. 574, 16 L. R. A. (N. S.) 307; 60 Fla. 412; 239 U. S. 583.
Reversed for appropriate proceedings.
Rehearing
This was an action of covenant resting upon an agreement contained in a deed from E.- Virginia Armstrong and F. C. Armstrong, her husband, to the United States and West Indies Railroad and Steamship Company, a Florida corporation.
The declaration alleged that the plaintiff was the owner of certain lands in Manatee county, that the United States and West Indies Railroad and Steamship Company desired to obtain a right of way through the land for its railroad track and the location of a depot thereon. That the plaintiff in consideration of the advantages to be derived from the construction of the railroad and the location of the depot conveyed to the corporation, its successors and assigns, a right of way twenty feet wide through the land and a tract of land for the depot, and the corporation in consideration of such conveyance covenanted that the “depot should be maintained so long as its track over said right of way should be used and known as Terra Ceia Depot and that the company would receive and receipt for all freight 'to and from said depot on regular schedule time. ’ ’
That under the deed so executed by the plaintiff the corporation took possession of the right of way and tract of land and constructed its railroad and depot thereon and that the depot was called Terra Ceia Depot. That the corporation thereafter conveyed to the defendant all its right, title and interest in and to its line of railroad, equipment, stations and other property in Manatee County including .the property conveyed by the plaintiff to it, and that the defendant, the Seaboard Air Line Railway Company, became thereby bound by the covenant contained in the deed.
It was alleged that the defendant had wholly failed and refused to comply with the “covenants and agreements contained in the deed and to maintain its depot or station on the tract of land conveyed thereby for that purpose and receive and receipt for all freight to and from said depot on regular schedule time, yet continued to use and occupy said right of way and tract of land thereby granted as well as the strip appurtenant to the additional side track aforesaid. ’ ’
The plaintiff sought damages for the breach of the covenant by the defendant. The deed was not made a part of' the declaration nor was the language of the covenant set out in haec verba, but it undertook to set up the substance of the agreement or covenant.
Certain pleas were filed by the defendant to which demurrers were interposed by the plaintiff. After the court ruled upon the demurrers the defendant interposed its amended pleas.
These amended pleas were substituted for the original pleas, they were not amendments, they were amended pleas, each plea was complete in itself, they bore the same numbers as the original and one other was added. The original
The assignments of error based upon the court’s rulings upon them and the arguments in relation to them we will •ignore, for the reason that the case was presented by the declaration and the amended pleas. What orders were made upon demurrers to pleas that were abandoned and whether they were right or wrong became an immaterial question.
The first amended plea denied that the covenant declared on was the covenant of the United States and West Indies Railroad and Steamship Company. There was a replication to this plea. The replication was bad because it set up a different covenant to the one declared on. The plea was in effect non est fac-tum. If there was no such covenant by the first purchaser there was none by the second. The defendant under that plea could .take advantage of any material variance between the covenant set out and that produced in evidence. The replication was a departure from the cause of action set out in the declaration. The plea closed the issue. The replication offered new matter inconsistent with the declaration in avoidance of the plea which' tendered the issue. The demurrer to the replication was properly sustained.
The second plea averred that there had been no record in the public records of Manatee County of the deeds and covenant declared upon and the defendant had no notice of such covenant. Issue was joined upon this plea.
A demurrer to this plea was sustained. One ground of the demurrer was that the plea .joined two distinct defenses to the ' ‘ ‘ same alleged tort. ’ ’ Another ground was that the plea did not traverse all the “breeches of the covenant or agreement alleged in the declaration.”
From these pleadings it appears that there was at this stage of the proceedings some doubt in the minds of counsel as to what manner of declaration had been filed. The plaintiff seemed to regard it as an action of tort for the violation of a legal right, also as an action of covenant, or that it might be regarded as an action, of tort -upon the breach of a duty growing out of a “covenant or agreement.” The defendant treated the declaration as combining an action of covenant and an action of tort and pleaded to both. The court treated the declaration as one for the breach of a covenant. The demurrer was properly sustained because the plea contained two defenses to one cause of action, one of the defenses being inapplicable. If the declaration was in covenant the plea of not guilty was inapplicable, but if the declaration was for a tort growing out of a breach of contract, a denial of the breach of the contract was inapplicable, the plea of not guilty was the proper place. It seems that the proper procedure would have been a motion for compulsory amendment of the plea
The fourth plea averred that the land conveyed by the plaintiff to the United States and West Indies Railroad and Steamship Company for a side track and right of way and depot was not used and known as Terra Ceia Depot but had ceased to be so used and known at and before the alleged abandonment thereof by the defendant and its refusal to receive and receipt for all freight to and from said depot; that the defendant had fully performed the agreement in plaintiff’s declaration mentioned by maintaining said depot at the point mentioned in the declaration from the date of the conveyance to it by the United States and West Indies Railroad and Steamship Company until the depot had ceased to be known ás Terra Ceia Depot- The pleas also contained a plea of not guilty. A demurrer to this plea was sustained.
The fifth plea which averred that the covenants alleged in the declaration were not the covenants of the defendant in so far as they related to maintaining the depot; that they were not in writing, nor signed, nor sealed by the defendant and they were “not made, nor breached within three years next before the filing of plaintiff’s suit thereon and the said trespass was not committed within three years next before the filing of plaintiff’s suit.” A demurrer to this plea was sustained correctly.
The sixth plea averred that the depot, alleged in the declaration to have been abandoned by the defendant, was not abandoned but was merely removed by order of the Railroad Commission to a point about three-quarters of a mile from the point of the original site. The plea also contained another plea of not guilty as to the trespass and the
The seventh plea also contained averments of facts that constituted no defense to the declaration and contained both the plea of not guilty to what the plaintiff conceived to be a trespass, and the Statute of Limitations.
The eighth plea was a repetition of the first and was properly stricken.
The ninth plea averred that the trespass complained of in the declaration ‘1 did not accrue within three years next before the filing of plaintiff’s suit.”
The tenth plea was withdrawn.
A replication to the ninth plea, which alleged that the trespass did not accrue within three years ‘ ‘ before the filing of this suit by virtue of the continuing trespasses committed by defendant by the use and occupation of the land” was held by the court to be bad on demurrer.
After these various pleas, demurrers, replications and orders were made and filed the defendant interposed an amended tenth plea which averred that the consideration for executing the deed by the plaintiff to the United States and West Indies Railroad and Steamship Company was different from that alleged in the declaration and averred it to be the advantage which the plaintiff would derive through the construction of the railroad over and upon their land and that the grantee in that deed built its railroad and constructed its depot and maintained the same until the railroad properties were transferred to the defendant and that the defendant maintained and operated the railroad and railway station until the 11th of April 1918 “whereby and by reason whereof it has earned and is entitled to the land and premises aforesaid; and as to the
The record then shows that issue was joined upon all remaining-, pleas. Issue was therefore joined on the first, second, ninth and tenth pleas.
So that the issues presented upon the trial of this case were: first, that the deed and covenants in the plaintiff’s declaration mentioned were not the deeds and covenants of the United States and West Indies Railroad and Steamship Company; second, that the deed and covenants set forth in the declaration were not recorded in the public records of Manatee County and the defendant had no notice of the deeds and covenants alleged; third, that the trespass alleged did not accrue within three years before the commencement of the action, and fourth, that the United States and West Indies Railroad and Steamship Company complied with its agreement by building its road and depot and maintaining the same until"conveyed by it to the dedefendant; that the defendant had constructed and maintained the railroad and depot until the 11th of April 1918 and had therefore earned the right of way and depot site mentioned in the declaration because the real consideration for the deed was performed; and not guilty as to any trespass.
When the cause came on for trial the plaintiff offered in evidence the deed made on the 8th of February 1902 by Virginia Armstrong and F. C. Armstrong to the United States and West Indies Railroad and Steamship Company. The deed recited that the grantors in “consideration of the advantages derived by them through the construction of the United States and West Indies Railroad and Steamship Company and the sum of $5.00 dollars, lawful money of the United States” had granted and conveyed to the
Objection was made to the reading of this instrument in writing upon the ground that there was a variance between the covenant set forth and contained in the instrument and the covenant alleged in the declaration; that there was a material variance between the deed offered and the deed described in the declaration; that the covenant contained in the deed and that described in the declaration were not the same in legal effect. This objection was sustained upon the ground that as the declaration declared upon a covenant “that said depot should be maintained so long as its (defendant’s) tracks over said right of way should be used” and that the deed proffered in evidence does not “show an obligation to maintain the depot (if at all) any longer than conditions remained substantially unchanged” that there was a variance between the allegation and the proof. Such ruling by the court was correct.
There was not only a variance between the covenant declared on and that offered to be proved, as a mere reading of the two will show, but the covenant contained in the deed Avas not one running with the land but a mere personal
The other questions presented by the record need not be discussed.
The plaintiff is not precluded by this action from maintaining a right of action for the value of the depot site which was conveyed to the United States and West Indies Railroad and Steamship Company upon which to erect a depot because of the abandonment of same by the defendant and the retention of the land notwithstanding such abandonment, if such be the fact.
The judgment of the court is affirmed.
Dissenting Opinion
Dissenting.
In an action at law against the assignee and successor of a corporation covenantor brought by the covenantees in a deed conveying land for a right of way for a railroad and for a depot, &c., it is in effect alleged that in consideration of said grant and as an inducement therefor “said corporation covenanted and agreed in and by said deed and by the acceptance thereof that said depot should be maintained so long as its track over said right of way should be used and known as Terra Ceia Depot and that the company would receive and receipt for all freights to and from said depot on regular schedule time;” that the grantee accepted the grants and covenants, recorded said deed, entered upon and took possession of said right of way and depot site, built thereon in compliance with its covenant a railway station or depot, named the same Terra Ceia Depot, &c.; that thereafter the grantee corporation transferred and conveyed to the defendant corporation all its right, title and interest in and to all of said property, “and that said defendant received and accepted the same subject to the same duties and liabilities and under the same obligation toward said plaintiff by virtue of the covenants and agreements contained in the deed aforesaid as the same had theretofore been held by the” .original grantee; that thereafter “the regular use of the station aforesaid was abandoned,” &c. The pleader undertook to describe the deed of conveyance according to its legal effect as he understood it. Savage v. Ross, 59 Fla. 407, 52 South Rep. 16.
The deed of’ conveyance is to the grantee corporation and “its successors and assigns” and recites a nominal cash consideration for a right of way for the construction of”
The main opinion holds that the deed offered in evidence is variant from that alleged in the declaration and that the covenant here considered is not one running with the land conveyed.
The test whether a covenant runs with the land or is merely personal is whether the covenant concerns the thing granted and the occupation and enjoyment of it, or is a collateral'and personal covenant not immediately ■ concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised, and the act to be done or permitted must concern the land or estate conveyed. I Williston on Contracts, p. 755; Purvis v. Shuman, 273 Ill. 286, 112 N. E. Rep. 769, L. R. A. 1917A 121. The grant being to the grantee “its successors and assigns forever” the facts of this case do not make it conflict with the decision in Spencer's Case, 5 Coke 16, 15 Eng. Ruling Cas. 233; 15 C. J. 1241; 7 R. C. L. 1100.
The conveyance was of a right of way “also sufficient amount of land for depot,” to the grantee corporation “its successors and assigns forever ’ ’ and contains the following: “Said company agrees to receive and receipt all freight to and from said depot on regular schedule time, said depot to be known as Terra Ceia Depot. ’ ’ This clearly is a covenant running with the land and is binding on the grantee corporation that accepted the conveyance and on “its successors and assigns.” Dunn v. Barton, 16 Fla. 765; Mobile
There appears to be no substantial variance between the deed of conveyance declared on and that offered in evidence.
