Elyton Land Co. v. South & North Alabama Railroad, 100 Ala. 396

Elyton Land Co. v. South & North Alabama Railroad

100 Ala. 396 | Ala. | 1893

HARALSON, J.

The suit is for a strip of land 100 feet wide, running, and constituting the right of way of the defendant corporation, through the City of Birmingham.

The averments of the complaint on which recovery is sought are, that in 1872, the plaintiff was the owner and in possession of said tract of land, and, for a nominal consideration, conveyed the same to the defendant railroad company as a right of way, upon a condition expressed in the deed of conveyance as follows : “Provided, however, that any other railroad running into or through the City of Birmingham shall have the right to run a parallel track along upon the same right of way; ” that defendant accepted the conveyance upon the condition therein expressed and built the track of its railroad thereon; *405that on the 25th July, 1890 the Highland Avenue & Belt Bailroad Company, running a railroad' into and through Birmingham, demanded of defendant the right to run a track on said right of way, parallel to defendant’s track, which defendant refused to permit to be done,, and, thereupon, before the bringing of this suit, the plaintiff claimed a forfeiture of the said tract of land, and demanded the possession thereof from the defendant, but the defendant refused to surrender and unlawfully withholds the possession thereof.

There was a demurrer to the complaint, on several grounds, as set out in the record, which was sustained, and plaintiff declining to amend, suffered judgment on the demurrer, to reverse which this appeal is prosecuted.

There is but one question presented for review, and that is, the proper construction of the clause in the deed which is quoted in the complaint,—.and set out above. The appellant claims that this is a condition subsequent, conferring on it, the right to forfeit the estate on breach thereof, while the appellee contends, that it is a covenant or limitation or equitable easement for a breach of which, the remedy, if any, would be an action for damages at law, or a bill for the specific performance thereof in-equity.

In its most extended sense, the word, condition, signifies a clause in an agreement which has for its object to suspend, rescind, or modify the principal obligation; or, in a will, to suspend, revoke, or modify the devise or bequest. 4 Kent’s Com. 121; Coke on Litt. 201 a.

No precise or technical words are required in. a deed to create a condition precedent or subsequent. It is said, that the words, proviso, ita quod and sub conditione, are the most proper to make a condition, yet, they have not always that effect, but frequently serve for other purposes, sometimes operating as a qualification or limitation, and sometimes as a covenant; (IV. Com. Dig. 376-7) but, whether they amount to the one or the other may be matter of construction, dependent on the contract, the nature of the circumstances and the intention of the party creating the estate. The intention of the party to the instrument, when clearly ascertained is of controlling efficacy. But, when that is not clearly manifest, the construction to be given.to the deed, as has been well said, will, after all, depend less upon artificial rules, than upon the application of good sense and sound equity, to the object and spirit of the contract in the given case. 4 Kent 125, 133; IV. Com. Dig. 378; Finlay v. King, 3 Peters 346; Hayden v. Stroughton, 5 Pick. 528; Underhill *406v. S. & W. R. R. Co. 20 Barb. 455; Nicoli v. The N. Y. & E. R. R. Co., 12 N. Y. 121.

Conditions subsequent are not favored in tbe law, and are construed strictly, for the reason, that they tend to destroy the estate granted, and in many instances, when rigorously exacted, work hardships scarcely reconcilable with good conscience. And, when there remains a doubt, if the clause in a deed be a covenant, limitation, or condition, the court will incline against the latter, preferring the former. Nor are conditions sustained, when repugnant to the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience. 4 Kent 130, 131, 132, Co. Litt. 205, b, 219 b. Lord Cromwells case, 2 Coke 720; Chapin v. Harris, 90 Mass. 594.

Applying these principles of construction to the case in hand, and the question at issue is of easy solution.

The consideration of the grant was nominal, its subject was the right of way for the track of a great railroad, running through a city of unbounded expectations of growth in population and development in enterprises.- It is not a violent presumption, that the Elyton Land Company was largely interested, pecuniarily, in these prospective developments which have since that time culminated in the building of a large city of commercial and manufacturing importance. It gave the railroad the right of way, from advantages which it may be presumed the company supposed would accrue to its other surrounding possessions. The fact that it made the proviso in the grant that other railroad companies, as they came into existence and operation through the city, should have the privilege of running their tracks along parallel with defendant’s, is evidence of such a pecuniary interest; for these, in turn, would tend to increase population, develop enterprises, and bring increasing wealth to the city and to those owning lands to be sold and improved. It .is manifest that the grantor in this deed never had it in mind afterwards to take away from the defendant- its right of way in said city so as to shut it out and thereby defeat the very developments it intended to foster by the grant, nor that the railroad company accepted the conveyance with any .such understanding. There is a conspicuous and significant' absence in the clause we consider of a reservation of a right of re-entry upon condition broken, which would have been so proper and so easy of insertion, if such had been the intention of the grantor. One can hardly presume that a railroad company would have accepted a right of way, so inii*407mately connected with its future success, on any such terms, or that the party owning the land would, under the circumstances, have made so rigorous and ruinous an exaction. Far better would it have been for the railroad company to have purchased its right of way, or condemned it under the statute, than to have accepted a voluntary grant with a condition so repugnant to the very nature of the business and objects for which the land was acquired, the enforcement of which, at any time, on any account, would have been attended with consequences so serious to its enjoyment of the property, and so manifestly to the public inconvenience. It is certainly more consonant with equity and the application of sound sense to construe the clause rather as a covenant or a limitation upon the grant of the right of way, that other railroads running into or through the city of Birmingham shall have the right to run parallel tracks upon or along the same, jointly with defendant. In what way this right may be exercised, and how far enjoyed by other lines when inconvenient or detrimental to the defendant, are questions we do not consider, because they are not before us.

If it be suggested that the defendant has violated the covenant or limitation of the deed, and has deprived another road of the right of way as reserved thereby, it is a full reply, that it has voluntarily assumed such an attitude with all the consequences attaching thereto, amenable to remedies such as the law provides to any one whose rights may have been violated.

As supportive of our construction of the deed, we subjoin the following additional authorities: Post v. Weil, 115 N. Y. 370; Whitney v. Union Rwy Co., 11 Cray, 359; Stillwell v. St. L. R. R. Co., 39 M. App. 221; Palmer v, Ryan, 22 At. Rep. 574; Woodruff v. Woodruff, 16 At. Rep. 4; Portland v. Terwilleger, 19 Pac. Rep. 93; Joy v. St. Louis, 138 U. S. 1; Webb v. Robbins, 77 Ala. 177; McMahon v. Williams, 79 Ala. 288; Gilmer v. Montgomery Railway Co., 79 Ala. 569; s. c. 85 Ala. 532.

Affirmed.