49 So. 278 | Ala. | 1909
The appellee, on the 1st day of December, 1903, sold and conveyed to appellant three certain lots in the city of Birmingham, Ala. The deed contains covenants as to seisin, good right to convey, and against incumbrances, except a certain mortgage deed named, and contains a warrant of title against the claims of all persons, etc. The three lots were described as a whole, and not separately, and as described formed a parallelogram, the corresponding sides of which were, respectively, 100 feet and 140 feet. The northern boundary of the lots was described as the southern boundary of Avenue A, the eastern boundary as the western boundary line of Seventeenth street of such city, the southern boundary as the northern margin line of a “20-foot alley,” and the western boundary described as a straight line 140 feet long, and parallel with the eastern boundary and Seventeenth street. It will be observed that this property abuts Avenue A on the north, Seventeenth street on the east, and an alley on the south, but extends no farther than the southern margin of Avenue A, the western margin of Seventeenth street,, nor the northern margin of the alley — thus rebutting' what might otherwise be a presumption that the deed passed the fee, subject to the public easement of right of way, to the center of the avenue, street, and alley, which were named as three of the boundaries of the property. While the avenue, street, and alley constitute three of the four boundaries, there is no presumption in this case, because of these recitals, that it was contemplated or intended to pass title to any part of the soil of such thoroughfares.
The complaint as last amended contains five counts. The first is as for breach of covenant of seisin. The second is for breach of right to convey, in that a part of the property was in Avenue A, a public thoroughfare of the city of Birmingham. The third, fourth, and fifth counts as for breach of covenant against incumbrances. The defendant demurred to each count, separately, as
The trial court was clearly correct in sustaining the demurrers to counts 1 and 2, which relied on breach of covenants of seisin and good right to convey, in that the counts do not show either a breach as to seisin or as to good right to convey; but they affirmatively show that there was no attempt to convey any part of the avenues, and in no wise show or attempt to show the property conveyed was not owned in fee by appellee, nor that it had not a good right to- grant the whole of the land conveyed or attempted to be conveyed. But we are constrained to hold that counts 3, 4, and 5, which sought to recover as for breach of covenants and warranties against insumbrances, are each good, and were not subject to appellee’s demurrer. The amendments go only to the extent, and not to the right, of recovery. While, as stated above, there was no attempt by the appellee to convey to appellant any part of the avenues, and herein any prior conveyance by appellee to the railroad company of any part of the avenues would be no breach of the covenants of seisin, fee, or right to convey, yet it is alleged that a part of the conveyance of appellee to the railroad company was a release of the company from any damages to this property, subsequently conveyed to appellant, by reason of the construction or operation of their railroad along the avenue in front of appellant’s property. While this was not a conveyance of any part of appellant’s property, nor a conveyance or grant of any right of way over or across any part thereof, it was, however, an incumbrance thereon, which might, and
It is claimed by counsel for appellee that the alleged grant, conveyance, covenant, or permit, as it is variously alleged that the appellee made or extended to the railroad company, was void, and therefore it could not be a breach of the covenants. True, this grant by appellee could not alone authorize the railroad company to construct or operate its road along a public thoroughfare of a municipal corporation — such corporation, or the Legislature, alone, could do that — yet it is proper, and within the power of property owners along a public highway, street, or avenue, to convey to a railroad company the right to construct and operate its roads along or over such highways, and for a consideration to release such railroad company, its successors, or assigns, from all damages or liabilities, as to the property abutting such highways, by so constructing or operating such roads; and such contracts would certainly be valid, so far as they relate to damages or injury to such abutting property by reason of constructing or operating the road on a public highway, no matter whether the title to the fee in the highway be in the abutting owners, in the city, or even in the railroad company itself, or in a stranger. This, of course, might be limited to those damages not the result of the negligence of the railroad company; but as to this it is unnecessary now to decide. If this grant or contract which the appellee is alleged to have made to or with the railroad company to build and operate its railroad along Avenue A in front of the property in question, and which, for a valuable consideration, released the railroad company for damages to the property on that account, constituted an “incumbrance” upon the property subsequently conveyed
We are of the opinion that, under the definitions and authorities, this constituted an incumbrance within the covenant of the deed. An “incumbrance” is defined as “any right to or interest in land, which may subsist in third persons to the diminution of the value of the .estate of the tenanat, but consistently with the passing of the fee.” — Prescott v. Trueman, 4 Mass. 627, 629, 3 Am. Dec. 246 (citing 2 Greenl. Ev. 242). This definition has been accepted and adopted by nearly all the courts, and all text-writers, since it was announced. See cases collected in Words & Phrases, vol. 4, pp. 3519, 3520. It will be noticed that one of the elements of this definition is that the right or interest which constitutes the incumbrance shall he consistent with the passage of the fee. Mr. Rawle, in his valuable and comprehensive work on Covenants of Title, says that the word “incumbrance” has no technical meaning; that it is not one of the “terms of the law,” and hence no definition of it will be found in the old books; that it has been defined within the last century. — See 5th Ed. § 75. It is also said to be a weight on the land which must lessen its value, and is also stated to be “any right existing in another to use the land, or' whereby the use by the owner is restricted.” — Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543. Again, it is said to be “any claim which charges, burdens, obstructs, or impairs the use of the land, or prevents its transfer.”— Aunonymous, 2 Abb. N. C. (N. Y.) 56, 62.
An incumbrance, within the meaning of the law relating to covenants and warranties, does not depend for
It is conceded by the learned counsel for appellee, in his able brief in this case, that “the owner of lots abutting on a street or avenue in a city has an easement in such street or avenue, nor is it denied that the construction of any railroad, other than a street railroad, in such street or avenue in front of the lots of the abutting owner is an additional servitude, for which the owner of the lots is entitled to compensation; and it is further conceded that the existence of a public highway over land sold to another is a breach of a covenant against incumbrance, and gives a cause of action to the grantee, although he may have had knowledge of the highway.” But it is contended by counsel that when a street, such as the one in question, becomes dedicated and accepted by the city, only an easement remains in the property owner or his vendee, and that thereafter conveyance by the abutting owner of any rights or title to the street, inconsistent with the rights of the public, is absolutely null and void, and is, therefore, not the subject of an incumbrance. In this we cannot agree with counsel to the full extent of his argument. It may be void as against the city, or as to a third party who owns the fee to the street. It might not, alone, authorize a railroad company to construct its road upon the street, though the grantor own the fee thereto; but, in connection with
It is true, as contended by counsel, that only the owner of the land at the time of the construction of the railroad in front of it can maintain a suit to recover damages for the additional servitude imposed upon the high•way; but in the case at bar he (appellant here) cannot and never could maintain it, in this case, for the sole reason that his grantor, the former owner of the land, had permitted or induced the road to do the very thing of which he complains, and had thereby released or exempted it from any liability for injury to this property, by reason of constructing or operating the railroad upon this street which the property abuts. This is a charge upon this particular land described. It allowed the obstruction of ingress to and egress from this property by way of this avenue. It authorized the railroad company to envelop and cover this property with smoke, to throw upon it cinders and dust, and, by its proximity, to cause or make great noise (all matters being necessarily or usually incident to the operation of steam commercial railroads, and frequently the occasion of great inconvenience and other results disagreeable to people resid
Of course, it may be shown on the trial that the railroad, as constructed and operated, is of no detriment; that the property is not fitted for residence property or retail business, but only for wholesale stores, coal, cotton, iron, or other warehouses, yards, etc., which would render the railroad track at that place an advantage, rather than a detriment. This, however, would go only to the amount, and not to the right, of damages. Plaintiff might be entitled to recover nominal damages only, because no actual damages were or could be shown, if there was certainly shown a breach of the covenant as alleged.
The judgment is reversed, and the cause remanded.
Reversed and remanded.