Birmingham Belt Ry. Co. v. Lockwood , 150 Ala. 610 ( 1907 )

SIMPSON, J.

The. hill was filed in this case by the appellee, (complainant) against the appellant (defendant), setting up her title to a certain lot in Birmingham, claiming that complainant has the title to the middle of the street abutting- said lot, referring- to the various agreements and ordinances by which defendant aud its predecessors obtained the right to lay tracks and operate cars on said street, which is called “Avenue E,” and raising some questions as to the regularity of the organization of corporations and the transfer from one to the other. The bill then sets up as the gravamen of its complaint that the “use of Avenue E by said defendant is not a mere continuation of the method of user of the said street by its predecessors”; but, on the contrary, it has discontinued its passenger service, and has “enormously increased the number of -freight cars carried across.said property, and has greatly multiplied the switching and stops -of its trains to allow the unloading of its freight and coal cars,” thus using the avenue as “railway yards.’-’ The hill describes the annoyances .from coal cars, etc., standing in front of. her residence, unloading, etc., and prays - that defendant make full reparation in damages, to he. assessed by a jury, and that it he “perpetually enjoined from entering and trespassing upon the property and. rights of enjoyment of your oratrix, * * * or of using'said Avenue E in front of her property in the manner aforesaid.’’ Without going into all' of the details, we hold that the chancellor correctly decided that the complainant is the owner of the Avest half of block 172, in Birmingham ; also that' the “respondent is the lawful successor to the rights to operate said railroad as a freight railroad in said Avenue E which Avere conferred on the Highland Avenue ¡fe Belt' Railroad- & Improvement Company by act of the General Assembly of- Alabama'- of February 18, 1887.” As to whether those rights are subject to the right of the complainant to compensation, present and prospective, depends upon certain facts which we proceed to inquire into.

It appears, from the exhibits to the answer and other evidence, that one Alberto Martin (from whom complainant deprives title), by indenture, conveyed the interest in the entire tracjt of land to the Elyton Land Company, and that company therein agreed to survey the land and lay off blocks, lots, and streets, and to divide the “blocks or squares, exclusive of the streets and alleys,” so as to give said Martin “two blocks or .squares” and said company one, which was done. On the 24th day of April, 1885, the mayor and aldermen of Birmingham, by indenture, for considerations therein mentioned, to he performed by the Elyton Laud Company, its successors and assigns, granted the right of way over certain streets, including said Avenue É, “for the purpose of building, constructing, operating, and maintaining its said street car lines,” and said Elyton Land Company agreed to build a double street car track on Avenue E, and to furnish the street car line with first-class equipment, to have cars running within six months, to be drawn by horses, mules, or steam locomotives, to be inclosed to resemble street cars. The road was put in operation, first drawing the cars by mules, and about June, 1886, it was converted into a dummy line, and operated for passengers. In September, 1886, application Was made to the city authorities for a right of way “for the purpose of a street railroad, aud a railroad to he used for transferring cars between the different railroads and the A’arious important manufacturing industries of the city,” Avhich application Avas granted, and under it an additional track was laid on Avenue É, and these tracks Avere used interchangeably for the passenger service, for transferring cars between the various railroads and manufacturing enterprises, and for deliA’ering cars loaded with coal and other articles to individuals along the line. It seems that this agreement Avas not signed, but was acted on and the business thus continued until August 7, 1888, when an indenture between the Highland Avenue & Belt Railroad Company, as the successor and assignee of the Elvton Land Company, and the mayor and aider-men of Birmingham, reciting that, whereas, the road had been so built and operated under the previous unsigned agreement; and, “whereas, it was contemplated by said contract that for the purpose of transferring cars and freight between the various railroads and manufacturing establishments of the city of Birmingham, it should thereby grant to the Elyton Land Company or its assigns the right to construct a railroad upon and along Avenue E,” and the party of the first part has built on said avenue a single railway “for its belt railroad,” and has done certain street grading and paving which has been required: Now, in consideration of what said party had done and agreed -to do, there was granted to it' and its successors “the right of way for a double track upon and over Avenue E, * * * and for a single railroad track, being a track in addition to the Highland Avenue Railway track constructed and operated with its steam moter engines for passengers, upon and along Avenue E,” etc. “* * * together with the right to lay all side tracks and turnouts that may he necessary for the purpose of building, constructing, maintaining, and operating its said railroad lines,” etc. The first party agrees to keep and maintain locomotives and other rolling stock to carry on the business,, etc., and, “if the party of the first part shall at any time undertake to carry passengers over the right of way herein granted, it shall provide first-class equipment,” etc. In the meantime defendant had obtained a special charter from the Legislature for the “Highland Avenue & Belt Railroad & Improvement Company," which name was changed, in accordance with the power given in the charter to the “Highland Avenue & Belt Railroad Company,” and said company acquired the property and rights of the previous companies. Heavier rails were laid, and the railroad was operated as a belt railroad, carrying cars from and to the railroads and industries, and delivering car loads of coal to individuals, and tlius it continued both services, passing through a receivership, until the complainant came into the ownership of the property July 11, 1902, and since that time the passenger service has been discontinued, as there was another street car service a square; from Avenue E.

The said act of the Legislature confers upon said new corporation therein organized general powers in regard to holding property, etc.; also the power “to purchase from the Elyton Land Company all of its railroad property and franchises, including the line known as the ‘Highland Avenue Railroad,’ and the .line known as the ‘Belt Railroad,’ now in process of construction, and all rights of way, franchises, and privileges connected therewith, and such other property as may be convenient or necessary to carry out the purposes of its incorporation”; also authorizes it to “operate said railroads so purchased, and complete the same,” to survey and locate “other lines in Jefferson and through any other counties, * * * and on such railroads and branches said company is authorized to take and carry for hire persons and property, by the power of steam’ or other power; also to construct, equip, etc., street railroads in Birmingham, etc. — Acts 1886-87, p. 335. Whatever may have been the rights of the defendant, or its predecessors, under the first grant of a right of way for a street railroad, it is c.lear that by the subsequent grants its powers were enlarged, and additional tracks and heavier rails- were put down for the express purpose of doing a freight business, and the act of the Legislature shows that the primary purpose; was to do a freight business, leaving it to the option of the company to do a passenger business, also, if it so' desired. It may be added that when the additional powers were conferred, under which the additional tracks were added and heavier rails were laid for the express purpose of doing a freight business, that was a new taking of the right of way, which entitled the then owner of idle lot to compensation for such damages as would result to the land by reason of tlie additional servitude, and such compensation could have been enforced, by injunction at any time before acquiescence operated as a bar.—Thornton v. S. & B. R. R. Co., 84 Ala. 109, 114, 4 South. 197, 5 Am. St. Rep. 337; Cowan v. Sou. Ry. Co., 118 Ala. 354, 360, 23 South. 754.

Under our Constitution, the right to compensation for “injury” to land by the “construction or enlargement of its works, highways, or improvements” by any corporation is placed upon the same basis as the taking of the land. — Const. 1901, § 235. Consequently the same remedies and the limitations thereto apply to the. one as to the other. Without entering into the question of limitation or laches, the authorities are conclusive to the point that for the taking or injury of land hv the construction of a railroad “the .measure of damages is the diminution of the. value of the property by reason of the construction or use which causes the damage;” second, “when the action accrues, it accrues once for all to recover the total damages,’- and the “right of action will be in the owner at the time the action accrued, and will not pass by conveyance of the property thereafter made, and the grantee in such conveyance will take subject to the right to continue this construction or use which causes the damage.” — Lewin on Eminent Domain (2d Ed.) § 653b; Mills on Eminent Domain, § 66; Haskell v. New Bedford, 108 Mass. 208, 214; McFadden v. Johnson, 72 Pa. 335, 13 Am. Rep. 681; Central R. R. v. Hetfield, 29 N. J. Law, 206, 213, 216, 219; Roberts v. N. Pac. R. R., 158 U. S. 1, 10, 15 Sup. Ct. 756, 39 L. Ed. 873; N. Pac. R. R. v. Murray, 87 Fed. 648, 651, 31 C. C. A. 183; King v. So. Ry., (C. C.) 119 Fed. 1017; 3 Elliott on R. R., p. 1449, § 1000; Evans v. S. & W. Ry., 90 Ala. 54, 60, 7 South. 758; S. & N. R. R. v. A. G. S. R. R., 102 Ala. 236, 240, 14 South. 747.

The evidence is uncontroverted that the complainant did not acquire any interest in the. land until 1902. This fact is fatal to the right of . the complainant to any relief on account of any7 use which was authorized by any of the previous grants to the railroad company. We think that the grants previous to the acquiring of any interest by the complainant clearly authorize the prosecution of the freight business by the railroad company, and that right, carried with it the right to do as much freight business as it was capable of, so that the mere fact that its freight business increased could not amount, to an additional servitude, and even if it was under obligation to continue also the passenger business, its failure to discharge that duty would not authorize, an injunction against its legitimate freight business. But there is no claim in the bill that the complainant has been damaged by the cessation of the passenger business. It results that the chancellor erred in declaring that the complainant is entitled to compensation.

The decree of 'the court is reversed, and a decree will be here rendered dismissing the bill. The cross-appellant takes nothing by her cross-appeal.

Reversed and rendered.

Tyson, O. J., and Haralson, and Dowdell, JJ., concur.