97 So. 78 | Ala. | 1923
The suit was originally brought on the equity docket, seeking interpretation *128 of the right of way deed to the Southern Railway Company.
It was held on ruling on demurrer that complainant had an adequate remedy at law; demurrer was sustained to the amended bill, and the cause was thereafter transferred to the law side of the court, as was provided by law. Stover v. Hill,
The parties shaped their respective pleadings to that of a statutory action of ejectment and the defense thereof, and on the trial the general affirmative charge was requested and given for the defendant.
A recovery may be had of a railway right of way by statutory ejectment. Patterson v. A. C. L. R. Co.,
The original bill sets out the alleged common source of title; exhibits the deed from Gladden to the railway company, and the agreement between the Gladden Lumber Company and the railway company; alleges that it was the intention that the condition inserted in the deed "was other than the Gladden Lumber Company intended." An abandonment of the tracks is averred, and construction and cancellation of the deed sought, that the title to the right of way be decreed to reinvest in complainant as assignee of O. W. Gladden or his privies in estate. Patterson v. A. C. L. R. Co.,
Since no mistake or fraud is alleged in the execution of the deed by O. W. Gladden to the railway company, a court of equity cannot give the deed a meaning contrary to its plain provision, for the reason that the Gladden Lumber Company, a stranger to the title, may have thought that the deed contained different provisions, or may have intended to procure the parties thereto to embrace in the deed different provisions. Stacey v. Walter,
The appellant relies upon S. A. L. Ry. Co. v. Anniston Mfg. Co.,
In Patterson v. A. C. L. R. Co.,
There was no error in refusing evidence offered by plaintiff that it had endeavored to secure other tenants on its lots through which the "spur track" passed. The evidence sought was not confined to a rental of the right of way in question, and was not definite as to time and defendant's connection with the effort to rent or lease the lots, including the spur track and service thereon. For like reason, the correspondence between Mr. Thomas and Wm. Smith Co. was properly excluded, not being sufficient, or tending to show abandonment by defendant of the spur track under or within the terms of its deed thereto from O. W. Gladden.
The question, "If the remainder of those two blocks, taking off this 14-foot strip from 1912 to 1919, didn't rent for anything at all, this 50-foot strip wouldn't have had any rental value either, would it?" was not the proper test of the rental value of the right of way and use of the spur track thereon.
The general affirmative charge was *129
properly given at defendant's request in writing. The uncontradicted testimony shows that defendant railway company was in possession of the spur track; that it had not discontinued operation of the same, and had not taken up or removed its rails therefrom. The provisions of the deed are to the effect that in event the said industrial track shall be abandoned at any time hereafter by the railway company, and, in evidence thereof, it shall discontinue the operation of the same and take up and remove its rails, materials, and fixtures in said track, then the right of way hereby conveyed, and all rights incidental or pertinent thereto, shall revert to the parties of the first part, their heirs, successors, or assigns. The evidence shows that the foregoing condition as to provisions and evidence of abandonment did not exist to the time of and after the bringing of the suit, or at any time to the trial. The purpose of operation of the spur track contained or defined by the terms of the deed before us gave the railway company the right to use the same for railroad purposes so long as it was required for the operation of the track and its general business. M. J. K. C. R. Co. v. Kamper,
In Western Union Telegraph Co. v. L. N. R. Co.,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.