117 Ala. 395 | Ala. | 1897
This was a bill filed by the -Highland Avenue & Belt Railroad Co. against the South & North Alabama Railroad Co., and is in the nature of a bill for the specific performance of a covenant contained in a deed, executed in the year 1872, by which the Ely ton Land Co., the founder of the present city of Birmingham, conveyed to the South & North Alabama -Railroad Co. a strip of land one hundred feet in width
Counsel for the defendant, besides relying upon the want of equity in the bill, urge the following objections to its sufficiency : First, because it does not show that complainant’s railroad falls within the class of railroads intended to be benefitted by the deed. Second, because it does not show that the right of way was not already necessarily used and occupied for railroad purposes at the time the complainant demanded the right to build a parallel track thereon. Third, because it does not locate the place where complainant seeks to lay its track. Fourth, because the bill does not tender compensation. Fifth, because the proviso contained in the deed is void for repugnancy to the other clauses of the deed.
In considering the motion to dismiss the bill for want of equity the attention must be directed wholly and exclusively to the equities of the bill, not to its frame, or
Assuming, so far only as is necessary in the determination of the equity of the bill, that the railroad of the complainant is such a railroad as was in the minds of the parties at the time the deed was executed, and such as was intended to be benefitted by the provision securing to “other railroads” the right “to run a parallel track upon and along the same right of way,” we can not doubt that the bill contains equity. If its averments do not show clearly and affirmatively the title of complainant to the relief asked as a beneficiary under the deed, they may be aided by amendments. It does not affirmatively show, and we do not judicially kuow, that its railroad is not such as was in the contemplation of the parties.
In the case of Elyton Land Co. v. South & North Ala. R. R. Co., 100 Ala. 396, we had occasion to construe this same deed for the single purpose of determining whether the proviso contained therein was technically a condition, the breach of which by the grantee’s refusal to allow another railroad to build a parallel track on the right of way would cause a forfeiture and authorize the grantor to recover possession. We there decided that it was not a condition but a covenant or limitation. Whether it be construed as a covenant or as a limitation is immaterial; its effect upon the rights and obligations of the parties thereto is the same. It operated to create in favor of such other railroads as might seek in the future to run into, or into and through, the city of Birmingham, an equitable easement in, or right to build a parallel track upon and along, the right of way granted to appellant, and by its acceptance of the deed, appellant became bound to comply with its stipulations.—Joy v. St. Louis, 138 U. S. 1; s. c. 45 Am. & Eng. Rail.
That a court of equity has jurisdiction, at the instance of a beneficiary under such a covenant, to enforce the specific performance of the covenant by declaring such beneficiary entitled to'the use of the right of way and enjoining any interference with the exercise of the right to use it, even though such beneficiary be not specifically named in the agreement and was not in existence at the time it was made, we regal'd as settled by the first two cases above cited. In Joy v. St. Louis, supra, there was a tripartite agreement between the commissioners of a public park near the city of St. Louis, the St. Louis County Railroad Co. and .the St. Louis, Kansas City & Northern R. Co., by which the park commissioners gave to said two companies a part of the right of way through said park, and the railroad companies bound themselves to permit other railroads, not named in the agreement, to use the right of way upon paying such fair compensation as might be agreed upon by such companies. One of the original companies forfeited its rights, and the other took possession of the right of- way, built its tracks thereon, and operated its road over it, occupying, in the course of time, the whole of the right .of way with -its tracks. Subsequently the St. Louis, K. C. & Colorado R. Co., desiring to enter St. Louis, demanded of the receivers of the company in possession permission to run its cars over the right of way and over the tracks of said company, claiming the right under the provisions of said agreement, to which it was not a party; and its claim being denied and demand refused, it then filed a bill praying the court to enjoin and restrain respondent from interfering with its use of said right of way and tracks. It was held, both in the circuit court — 29 Fed. Rep. 546 —and in the- United States Supreme Court on appeal, that the covenant to permit other railroads to use the right of way created an equitable easement in favor of such railroads not only in the right of way, but also in the tracks ; that it became binding on the defendant company by its acceptance thereof; that it was sufficiently definite in its terms to be specifically enforced; and that there -was mutuality of remedy between the
In Chicago, St. P. & K. C. R’y. Co. v. Kansas City, St. J. & C. B. R. Co., 52 Fed. Rep. 178, the city of St. Joseph had passed an ordinance granting to the Kansas
We do not wish to be understood as even intimating that, under the terms of this agreement, another railroad company, desiring to enter Birmingham, would be entitled to.use the tracks of the defendant, even though the whole of the right of way should be occupied at the time. We are determining only the motion to dismiss the bill for want of equity, and we think all the questions presented by argument of counsel going to the equity of the bill alone are settled by the cases above cited.
Itfis urged by counsel that the bill does not locate the place on the right of way where complainant seeks to lay its track, and for this reason there can be no specific performance, but this objection can not be sustained. The grantor in the deed was endeavoring to secure for future railroads the general right to use the right of way set apart by it' and granted to defendant-, and not to fix mere details as to its use by such roads, such as the precise location on the strip of each track to be built in
Again, it is contended that the lapse of time, and the change in conditions and circumstances that has taken place since the agreement was made, are such that the specific performance of the agreement will work hardship and injustice, and that when this is the case equity will withhold such relief. It is true, the bill informs us, and we judicially know, that such changes have taken place, that a great and growing city has sprung up around the right of way, and that the business of the defendant has greatly increased in consequence, requiring greater track facilities within the city for its safe and convenient handling; but we are not informed of the extent of this increase, nor what would be the effect of the enforcement of the contract. If a contract is unfair and oppressive, equity will not enforce it. But the rule with respect, to changed conditions, is, that if the contract was fair when it was made, it will not be deemed otherwise in consequence of the subsequent happening of unforeseen and unexpected events, not due to the conduct of the party who seeks performance.— Waterman on Spec. Perf., § 165; Fry on Spec. Perf.,
■ It was not necessary for the complainant to offer in the bill to pay such compensation for the use of the right of way as might be allowed. It is not the use of the defendant’s tracks or property that is sought, but the use of a portion of the right of way ■ on which to build á track. We think it was clearly the intention of the parties that this use should be allowed without compensation. It was not only the use of the right of way, but the free use of it, that was to be held out by the grantor as an inducement to the running of other railroads into the city.
In what has been said above we have had in view only the determination of the equity of the bill. Some of the points discussed were not raised by any of the grounds specifically assigned in the demurrer, and we have considered them only with reference to their bearing on the motion to dismiss for want of equity. There remains to be considered two objections to the sufficiency of the averments of the bill which were specifically assigned .
The first of these objections is, that the bill fails to show that there is any unoccupied space on the right of way on which complainant’s railroad can be built, or that the whole of the right of way was not already used and occupied for railroad purposes at the time complainant made its application for space thereon. The deed conveyed to the defendant the entire one hundred feet “for the right of way of their railroad,” subject to
Thus construing the deed and the rights of the grantee growing out of it, do the rules of pleading require an averment in a bill to enforce the specific performance of the covenant in favor óf one claiming'to be a benificiary thereunder,' that there is space on the right of way on which a parallel track can be built? The bill avers that the strip is one hundred feet in width, and that when the- defendant took possession of the right of way it “constructed a track on said right of way so granted in the center thereof.” We judicially know, and the bill informs us, that a populous city has grown up along the right of way, and also, perhaps, that the defendant’s railroad has become a part of a great public highway engaged in an interstate as well as local traffic, and that such traffic has greatly increased during the twenty years that have elapsed between the execution of the deed and the filing of this bill. True, the bill does not inform us, we do not judicially know, and it cannot be inferred from any facts averred, what has been the real extent of this increased business — whether it has been such as to affect the contingencies upon which depends the defendant’s right to the exclusive use of the right of way. Yet, if we have properly construed the deed and the rights .of the grantee arising out of it — if by its terms, interpreted in the light of the circumstances surrounding the transaction, the situation of the parties, their motives; and the objects intended to be attained, the defendant might legally acquire the right to the exclusive use of the strip — then it is manifest the right of any other railroad to use the same was contingent upon the non-existence, at the time it desired to- exercise the right, of those circumstances which would vest in the defendant the exclusive use. The deed must be read,
The application of the same rules of pleading forces the conclusioii that the bill is also defective in failing to show that complainant’s railroad falls within the class of “other railroads,” mentioned in the proviso. We consider this objection raised by the fourth ground of demurrer interposed to the original bill. Complainant claims title to the relief prayed for- as a beneficiary under a contract between third parties, in which it is not named or in any manner designated, except by the general term “other railroads,” for whose benefit the right sought to be established in favor of complainant, was reserved. As was said in Cockrell v. Gurley, supra, “it is a principle of universal application hi pleading, founded on reason and good sense, that the title of the complainant should be stated with sufficient certainty and clearness to enable the court to see clearly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the nature of the case he is called upon to defend.” If this right of way
It results from what has been said, as it appears that complainant’s railroad may belong to either one of three classes, only one of which can maintain a suit to enforce the specific performance of the covenant, and as the bill does not show to which of the three classes it belongs, and must be construed most strongly against the pleader, no clear title to relief is shown,.and the demurrer should have been sustained.
For the errors pointed out, the decree of the lower court must be reversed and the cause remanded.
Reversed and remanded.