Williams v. Glover , 66 Ala. 189 ( 1880 )

STONE, J.

A proper construction of the Contract of lease solves the only material question raised by this record. "Williams let to Glover a tract of land near Bridgeport in Jackson county, by written lease; the letting to continue five years, and the rent to be paid annually. Part, probably a large part of the tract, is an island in the Tennessee river, and, of course, borders on the river. Some twelve acres of the tract lie between high and low water mark, and is covered with water in high floods. Another portion of the land was in timber, about nine and a half acres: and there is a stipulation in the lease, excepting that part from the obligation the tenant assumed to clear up the land. This woodland piece, it seems, was neither to be cleared nor cultivated. The plaintiff, on the trial, remitted all claim for rent for the nine and a half acres of woodland. A railroad track crosses the island, and its embankment and the excavations cover another portion of the tract; probably about eleven acres. Appellant here (plaintiff below) claims that the tenant shall pay the agreed rent per acre for the entire tract, including the uncultivable as well as the cultivable portions; and the appellee claims he shall not be charged with rent for the lands between high and low water marks, nor for the lands covered by the railroad embankment and excavation.

The ownership of plaintiff extends to the margin of the water, at ordinary stage, and hence embraces the land betw'een high and low water marks.—Bullock v. Wilson, 2 Por. 436; Mayor v. Eslava, 9 Por. 577; Howard v. Ingersoll, 17 Ala. 780, 791; 3 Kent’s Com., marg. 427, note d.

The terms of the written lease are, that “ the said Glover, on his part, agrees to pay to the said Williams, at the expiration of each year, eight per cent. (8 pr. ct.) per annum on the value of said lands, estimated at thirty-five dollars ($35) per acre.” It had been previously stipulated in the lease, that “ said lands [were] to be hereafter measured, to ascertain amount of same.” If this had been a contract of sale and purchase, the lands to be afterwards measured to ascertain the quantity, and the purchaser to pay thirty-five dollars per acre» no one would question his liability to pay at that rate for the entire tract, including every description of land, whether cultivable or not. We think the proper construction of the contract is, that the tenant was to pay the agreed rent per acre for the entire tract, for the following, among other reasons : The lands are described as said lands — not as the cultivated part of said lands. These were to be measured, that the amount of rent should be ascertained, at a given price per acre. The rent was to be eight per-cent, per annum, on a stipulated value of the lands per acre. Now, eight per cent, per annum is the rate of interest fixed by our statute, for the loan or forbearance of money. Eight per-cent, per annum, on the value of real estate, is certainly a very moderate rent. If 'the eight per-cent, be limited to the cultivated portion, what compensation has the landlord for his investment in the uncultivated part ? True, parties may make their own contracts, and it is not for us to relieve them from the hardships of a bad bargain. Still, we may look at those results in interpreting a contract, which is not as clearly expressed as it might have been. Lastly, the parties, by the terms of the lease, show the rent was graduated by the value of the lands, and not by the value of the use and occupation. We think, however, if the railroad company had condemned, or otherwise acquired, a road-bed and right of wav, the land thus covered should be excluded from the computation. Of such part, Williams could not put Glover in possession.

The Circuit Court did not err in excluding the testimony of Gunter, that he had offered the same rent, to be computed for the whole tract. The interpretation of the contract can not be aided in that way.—Tanner v. Railroad Co., 60 Ala. 621, 643.

Reversed and remanded.