Lead Opinion
The suit is in the nature of ejectment. The error assigned is based upon the court’s refusal to give the general charge requested in writing by the plaintiff.
In short, the facts are that on November 30, 1911, M. J. Patterson, Dothan Foundry & Machine Company, and Dothan Hardware Company, owning contiguous lots, entered into a contract with Atlantic Coast Line Railroad Company, for the construction, maintenance, and operation for the time indicated, of a spur track leading from its main line across two of the lots into that of the Dothan Hardware Company, which contract was executed. Neither of the parties had any interest in the others’ land before and at the time the contract was executed.
The locus in quo, shown by the recitals of the agreed statement of fact, was the following described lands, owned by the plaintiff on the date of the execution of the contract, situated in the city of Dothan, Houston county, Ala., viz.: One strip of land situated on the west side of North Appletree street, facing said street 15 feet and extending back in a westerly direction and even length of 124 feet, being bounded east by North Appletree street, west by Dothan Foundry & Machine Company lot, and north and south by the property of M. J. Patterson.
Prior to institution of the suit, when Doth-an Hardware Company, owner of the last lot into which the spur track extended, was adjudicated a bankrupt, it ceased to exist, and the lot in question was purchased at its bankrupt sale by Malone Bros., who thereafter sold a portion of it to Dothan Grocery Company. More than 30 days prior to institution of the suit, and long after Dothan Hardware Company had ceased to exist, written notice to terminate the contract was given defendant by M. J. Patterson and Dothan Foundry & Machine Company. This notice was not joined in by either Malone Bros, or Dothan Grocery Company.
It was admitted that at the time of bringing suit and of giving said notice, there were located on the spur track business houses of M. J. Patterson and Dothan Foundry & Machine Company, in which business was conducted as when the contract was executed; that the warehouse of Malone Bros., also located thereon, was receiving the same use of the spur track formerly received by Dothan Hardware Company; and that Dothan Grocery Company in the conduct of its business received freight over said spur track, at its place of business erected on a portion of the Dothan Hardware Company lot. •
Defendant admitted possession of the land sued for, at the time of notice and of the institution of the suit, and that plaintiff owned fee-simple title to same, subject to whatever rights defendant had by virtue of the contract. It had been more than two years prior to the institution of suit, since plaintiff received a shipment of freight delivered over this spur track.
The contract recited that the parties of the second part had requested the construction of the side track for their use and benefit; and the respective footages on their properties, over which the same should extend, was stipulated. Its recited consideration was “the sum of one dollar * * * and * * * the mutual advantages to accrue to the parties hereto.”
It was covenanted on the part of the railroad company: (1) That it would furnish all material, and at the expense of the second *586 parties construct the spur track, the title to the materials so furnished to be retained in the company; and (2) to deliver and receive cars and freight shipments consigned to or from parties of the second part. The parties of the second part agreed to grade the roadbed, exonerate the party of the first part from liability as a common carrier, and to load and unload cars promptly at their own expense; to pay car service charges and observe the rules of the Public Service Commission and demurrage bureau; to release from damages for nondelivery of freight or of cars, and for that negligently caused by defendant to stock; to release “from all claims for damages owing to or resulting from fire communicated to any improvements located or placed on or contiguous to said spur track,” and to indemnify the first party against all such claims by others, to maintain and repair crossings; and to pay all taxes and .assessments, and maintain lights, etc., for switches and crossings. It was further covenanted by second parties that they would each “ship and receive over the line of the railroad controlled and operated by the said railroad company all goods delivered by them or received by them to and from points reached by the line of railroad of the said railroad company, and its connecting lines or roads, provided that the rates or freight charges of the said railroad company shall not be higher than the lawful rates over other transportation companies for like goods to and from such points and that reasonably prompt service and delivery is made.” Paragraph 8.
The reporter will set out the thirteenth and fourteenth paragraphs of the contract, giving the period of time in which the contract was to be of force and the method by which it should be terminated.
The moving consideration for this contract, on the part of the railroad company, was that the second parties should and would each “ship and receive over the line of railroad controlled and operated by the said railroad company all goods delivered by them or received by them to and from points reached by the line of railroad of the said railroad company, and its connecting lines or roads,” on an equal freight rate with that obtaining over other transportation lines for like goods to and from such points, and the lawful freight charges to be realized on such shipments, and that, in addition, on the basis of the lawful freight charges therefor, the railroad company should have the control of such freightage over its connecting lines.
The consideration moving to the parties of the second part for the contract was facility in freight movement, together with diminished drayage and like expenses, to result from the individual use of the spur to each of the parties in the conduct of their several individual and corporate businesses, whether located on the spur or elsewhere in Dothan.
The stipulated period of time in which the contract was of binding force, and the specified method of termination or of renewal, are matters of controlling importance. Under the lease: (1) The original parties were .bound for one year, unless contract sooner terminated by the railroad company for cause; and to that term the right of renewal on condition was appended. (2) The option of renewal was to be expressed in writing, and, if renewed, the contract was to continue and be of force upon the same terms, conditions, and stipulations as at first, for another or additional period of one year, provided the second parties should be in the successful operation of business at such time, and provided the amount of freight shipped to and from said side track to the account of the second parties should, in the opinion of the railroad company, justify the extension and renewal, and was to continue in force until terminated by either of the contracting parties on 30 days’ written notice. (3) The railroad company was to have the right to terminate at any time, upon 30 days’ notice in writing to the parties of the second part, in the event of the failure of the latter to keep and perform any of the covenants and stipulations on their part.
The record is silent as to a renewal in writing by plaintiff, Dothan Foundry & Machine Company, and Dothan Hardware Company, or as to a renewal by the successors of the two parties of the second part, plaintiff and Dothan Foundry & Machine Company, after the dissolution of Dothan Hardware Company. As among themselves the second parties had controlling reasons for entering into the contract which did not then, nor later, so far as the record shows, obtain as to the third party purchaser at said judicial sale. No provision of the contract required any of the original parties to enter into the contract with the other parties, or to a continuance thereof with each other or with third parties. Each party had, and reserved to himself or itself, the freedom of contract as to this subject-matter, after the expiration of the one-year period.
Analogous authority, upon the severalty of a contract, is Burton v. Henry,
“The contract, while nominally inuring to all the promisees — i. e., made with all of them— shows upon its face distinct and several rights were intended to be secured. Not only so, it is very clearly indicated that these separate rights may be separately asserted. Moreover, the interest of the promisees is not only not joint, but is, in the very nature of things, even aside from the language of the instrument, adverse each to the other, and the proceedings provided for by the agreement, for the effectuation of whatever equities the parties respectively had in the subject-matter, whether as between them, or any one of them, and Henry, and also as between themselves, are directly adversary in character. The most casual consideration, of the facts outlined above will demonstrate this to be true.”
“A predial servitude or easement is a charge upon the servient tenement, and follows it into the hands of any one to whom such estate or any part of it is conveyed. And as it is annexed to the estate for the benefit of which the servitude is created, the right is not destroyed by a division of such tenement. The owner or assignee of any part of it may claim the right, so far as it is applicable to his part of the property, provided it can be enjoyed by the several estates without increasing the burden or charge upon- the servient estates.”
In the case in which this rule found expression, the grantor had sold a parcel of land opening upon another lot, which the grantor covenanted should remain open for purposes of light, etc.; the grantee sold a part of his estate to the plaintiff, and then, the original grantor having sold the open lot to the defendant, the latter began to build upon it in such wise as to obstruct this light Upon a bill in equity by the plaintiff, to .restrain him from infraction of this covenant running with the land, an injunction was granted restraining defendant as prayed. Hills v. Miller, 3 Paige (N. Y.) 254,
It may not be necessary to advert to the several definitions of “prsedial servitude,” as the words are used by Mr. Washburn. However, we may say that thé words praadium serviens, in civil law, are defined by Mr. Black to be an estate which suffers a servitude or easement to another estate; “the servient tenement.” To like effect are 3 Bouvier’s Law Dict. p. 2650; 6 Words and Phrases, 5492. In Morgan v. Mason, 20 Ohio, 401, 409 (
“A late learned writer (Angell on Water Courses, § 142) informs us that they were treated of by the civil law under the name of services, where they were divided into real and personal. The former were defined to be ‘a service which one estate owes to another, or the right of doing something, or of having a privilege in one man’s estate for the advantage and convenience of the owner of another estate.’ ‘The estate unto which the service is due, is called prsedium dominans, or the ruling estate; and the other estate which suffers or yields the service, is called prsedium serviens, or an estate subject to a privilege or service. ■ To constitute such service, it is there necessary that there be two estates, the one giving and the other receiving the advantage.’ ”
In the answer to these questions, it is necessary to note the effect of assignments *589 of an estate for years, or of the reversion expectant t'hereon, and of the incident rights and liabilities growing out of stipulations in leases, and whether the benefits of such contractual rights pass to tlie assigns of either lessor or lessee, so as to render them enforceable for and against assigns. The law on this subject is primarily determined by the statute of 32 Henry VIII (A. D. 1540), and by the construction placed upon the statute in Spencer v. Clark, Pasch. 25 Eliz. 16, in the King’s Bench; s. c., 5 Coke, 16 (our Sup. Ct. Lib. 3 Coke’s Rep. part 5, p. 16); s. c., 1 Smith’s Lead. Cas. part 1, pp. 137-228. The statute was passed after the dissolution of the monasteries and the forfeiture of their lands by Ilenry VIII, for the purpose of enabling the crown, or those in whose favor the forfeiture was granted, to enforce the lease covenants of the lessees of the lands. Its primary purpose was that the benefits and the burdens of any covenants or conditions contained in the lease “should pass to the assigns of either a lessor or lessee.” The statute is set out in Sims’ Covenants, 71.
The construction of the statute (finding expression in Spencer’s Case, supra), is to the -effect, among other things: (1) That where a covenant extends to a thing in esse, parcel of the demise, such covenant shall go with the land, and “shall bind the assignee, although he be not bound by express words.” (2) If the lessee covenants, for himself and his assigns, that they will make a new wall upon some part of the lands demised, the assignee is bound by such covenant. But the assignee, though named, is not bound by the covenant to do something which is merely collateral, and which in no manner touches the thing demised and assigned over. It is thus apparent that Spencer’s Case imposed upon the statute limitations, the most important being:
(a) That a covenant will not run with the land if it be merely collateral, and doth not touch or concern the thing demised. This exception is thus stated:
“But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor, which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over; and therefore in such case the assignee of the thing demised cannot bo charged with it, no more than any other stranger.” Gilmer v. M. & M. Ry. Co.,79 Ala. 569 , 572 (58 Am. Rep. 623 ); Addison on Contracts, § 430 et seq.
(b) That, even- though, the covenant touch or concern the land, “if it concerns likewise a thing which is not in esse at the time of the demise, but which is to be built or created thereafter, the covenant will not bind assigns unless they are expressly mentioned.” This distinction between covenants as to things in esse, and those as to things not in esse, with the requirement of the mention of assigns in the latter case, though criticized by some courts (Willcox v. Kehoe,
That the covenants to ship and receive the indicated freights over roads beyond this defendant’s, line, to exonerate that company from liability for damages occurring to the second parties’ other real properties and to certain of their personal properties, and to indemnify against “all such claims” that might be made by third parties, were merely personal, and not running witih such lands demised, would not appear to require citation of authorities.
However, it is instructive to note the leading cases of Spencer v. Clark, supra, and Congleton v. Pattison, 10 East, 135. The Chief Justice, writing in Oongleton’s Case, declared of a covenant in which the assignee is specifically named that, though it were for a thing not in esse at the time, yet being specifically named, the covenant would bind the assignee “if it affected the nature, quality, or value of the thing demised, independently of collateral circumstances, or if it affected the mode of enjoying it.” The covenant there construed was contained in a lease of lands with liberty to make a water course and erect a mill, and not to hire persons to work in the mill who were settled in other parishes without a parish certificate; held, that the covenant did not run with the land or bind the assignee of the lessee. Mr. Justice Bayley, concurring, said that in order to bind the assignee the covenant must either affect the land during the term, such as those in regard to the mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land at the end of the term.
By way of illustration of one of the limitations pointed out in Spencer’s Case, supra, the justice said:
“Suppose a covenant by the lessee to make a communication by water from the demised premises through other persons’ lands to another place to facilitate the access to a market, the value of the reversion would be materially affected by the performance or non-performance of such a covenant; but it could not bind the assignee, because all the cases show that the assignee is not bound unless the thing to be done is upon the land demised.”
In the instant ease, the communication by rail from the demised premises of the Dothan Hardware Company purchased at judicial sale by Malone Bros, and Dothan Grocery Company, was through the lands of Dothan Foundry & Machine Company and M. J. Patterson, for the shipment of freight to and from distant points and over other railroads and lands, and this limited use within the contract period did not affect “the value of the lands at the end of the term.” If the conveyance had been by the Dothan Hardware Company to the present owners (rather than by decree and a sale thereunder), as such assignees they would not be bound, because the thing covenanted to be done was not to be wholly done on the lands demised, but on and over other ways from distant shipping points, and involved freights emanating and proceeding from and to other businesses in which the parties of the second part were or might be engaged, not located on the spur track. So of the agreement to exonerate against fire damages. It would appear that an exception is presented in plaintiff’s behalf under the covenants, in the independent collateral agreement to ship and receive freight from other points than those on defendant’s line or railroad and over the lines and connecting lines of the party of the first part, used in the business of the second parties, whether such business be located on or off the spur track, and to exonerate from liability for damages by fire (the result of the railroad company’s negligence) to the buildings and structures of the second parties, or of third parties located on other lands than those over which the spur track was laid.
This conclusion is supported by our cases on the subject. In McMahon v. Williams,
“Whether a deed confers a persona] right merely, or one appurtenant to the premises, must be ascertained from the terms of the deed itself, if it speaks anything to the point; or, if *591 not, by the situation of the contracting parties and the surrounding circumstances.”
In Gilmer v. M. & M. Ry. Co.,
The difficulties, attending the construction of covenants were referred to by Mr. Justice Somerville, who said:
“The subject is one full of intricate learning, and the decisions of the courts touching it are greatly conflicting, and far from satisfactory. Among those, however, which have been decided to follow the realty into the hands of an assignee, are covenants of warranty and for quiet enjoyment, covenants by tenants to pay rent, to repair, maintain fences, reside on the premises, or cultivate the demised lands in a particular manner; not to carry on a particular trade on the premises leased or purchased; not to build on adjacent premises; and many others of an analogous character. Among those adjudged to be personal, and not therefore to touch or concern the land, are covenants made by owners of land between whom and the covenantee there is no privity or title or estate; a covenant not to hire persons of a certain description to work in a mill; or a covenant with a stranger not to permit a gristmill to be erected on the owner’s premises; a covenant by the vendor of lands not to permit marl to be sold from adjoining lands; by a lessee of a house to pay so much for every tun of wine sold in the house; or to buy all beer used by him from his lessors or from his successors in trade. Law of Real Property (Boone) § 317; 1 Addison, Contr. § 436; 2 Greenl. Ev. § 240; 1 Parsons’ Contr. 231-233.” 2 Elliott on Contracts, § 1448 et seq.
The first exception to the statute announced in Spencer’s Case was recognized in the statement just quoted, to the effect that the covenant touched and concerned the land itself, and was not collateral to it, because it was to be performed on it, and affected the value of the adjacent land of the grantor, being greatly beneficial to it, and was in the nature of compensation by way of rent for the land conveyed; no other consideration having been paid therefor than that which was confessedly nominal. Its performance or nonperformance affected the mode of enjoyment of the granted premises, and their value or quality, so as td render the title acquired by the vendee a subordinate one, and this is one of the tests by which to decide whether the covenant is inherent in the land itself. Gilmer v. M. & M. Ry. Co., supra.
In Webb v. Robbins,
“We are convinced that Webb, before the trade was concluded, if not before it was entered upon, knew the nature of the obligation, and that he acted on the’ belief — possibly on advice — that such obligation inured to the benefit of R. H. Gregg alone, and only bound Smith and McLeod, and that it could not operate for or against any other person, succeeding to the ownership of the several parcels of land. It is clearly competent, in making a sale of real estate, to retain an easement or servitude in the lands sold; * * * as a privilege or easement in the estate of the grantor, in whose favor the limitation is imposed. This easement and this disability follow the several parcels of land, into whose hands soever they may pass, with notice, actual or constructive, of their existence.” Webb v. Jones,163 Ala. 637 ,50 South. 887 .
See, also, recent cases of Adler & Co. v. Western Ry.,
Where such contracts are left to construction because of equivocal clauses or covenants, there arise difficulties which have been often referred to by courts and text-writers. Mr. Tiffany (1 Modern Law of Real Property, p. 117)' and Mr. Sims are of opinion that no positive rule is deducible from the decisions, whereby to determine whether a particular covenant touches or concerns the land demised; that that is a question which each judge must decide for himself, “just as he decides that a piece of evidence is admissible as logically bearing upon the subject.” Sims, Covenants, p. 109. However, the doctrine of our cases is that the intent and interest of the parties will be gathered from the instrument “if it speaks anything to the point; or, if not, by the situation of the contracting parties and the surrounding circumstances.” McMahon v. Williams, supra,
The just and reasonable construction of the contract compels to a different conclusion than that finding expression in the judgment of the trial court. Neither Malone Bros, nor the Dothan Grocery Company was a party necessary to join in the notice of termination given the railroad company; the notice given was sufficient as one requiring the company to terminate the contract in question and to discontinue its service' over the spur track and over plaintiff’s lands, and protected said company.
The judgment of the circuit court is reversed. The cause having been tried on an agreed statement of fact, in accordance with the usual course in such matters, a judgment is here rendered in favor of the plaintiff for the land sued for.
Reversed and rendered.
Concurrence Opinion
I concur in the reversal and rendition of the judgment in the court below. I concur in the opinion of Justice THOMAS, in so far as it holds the contract in question was at an end, and all agreements and covenants therein terminated, before this suit was brought.
I do not concur in other parts of the opinion, as to whether or not the covenants created by the contract ran with, or did not run with, the land. I do not desire to commit myself on this question, because I do not believe it necessary to now decide it. I am of the opinion that question was not before the lower court, and therefore not before this court.
This, in my judgment, did not suffice to continue the contract in full force and ef- ' feet, as if it had no time limit and if it did not provide in terms when and how it could be renewed.
*593 The provisions of the contract, at or near the end of the thirteenth paragraph, as to the mode and manner of terminating it, can have no application now, for the manifest reason those provisions of necessity refer to a time when the contract was in force. The life of the contract was only one year from the making of it. The mode provided for renewing it only authorized its renewal for another term of one year. As before stated, there never was a renewal; but if there had been, or if one be inferred or implied, it would be for a year only. Hence, the provisions as for the termination necessarily refer to the time when the contract was in force. A fair construction of the contract leads to the conclusion that its entire life could not by any means be longer than two years from its date. Of course, the parties to this contract could, by the consent of all the parties, have abandoned it, and have made a new one, or modified the original; but there is no evidence that they ever did or attempted so to do, either in writing or by parol. The mere fact that the track was used by some or all of the parties after the life of the contract did not revive the contract with all its provisions, and make it one in perpetuity, or at the will of one party only.
It results that the contract in question afforded no defense to this action of ejectment, because it had expired by virtue of its own limitations, long before the action was brought. If the defendant has any rights in and to the premises, they arise from some other source, and not from this contract. As this contract was the only source relied upon by defendants to show title or right to occupy the premises, it follows that it had none, and the judgment should have been rendered for the plaintiff.