Elyton Land Co. v. South & North Ala. Railroad

WALK.EB, J. 'The land involved in this suit is included in the description of the strips of land lying on either side of the right-of-way of the Alabama & Cattanooga Bailroad Company, which, by the terms of the contract of April 21st, 1871, between the Elyton Land Company, the Alabama & Chattanooga Railroad Company, and the South & North Alabama Bailroad Company, were to be held by the Elyton Land Company forever as a perpetual right-of-way for all railroad companies doing business in and through the city of Birmingham. That contract was before this court in the case of the Alabama Great Southern R. R. Co. v. South & North Ala. Railroad Co., 84 Ala. 570, and the extent of the right conferred by its terms upon the South & North Alabama Bailroad Company in the right-of-way of the Alabama & Chattanooga Bailroad Company was there determined. In March, 1881, the Elyton Land Company filed its bill in chancery against the South & North Alabama Bailroad Company and the Alabama Great Southern Bailroad Company, alleging in substance the existence of the contract above referred to, the non-compliance by the Alabama Great Southern Bailroad Company as the successor of the Alabama & Chattanooga Bailroad Company with the conditions of said agreement to be performed by the former of these two companies, and the partial compliance by the South & North Bailroad Company with the conditions to be performed by it under said contract, so as to entitle that company to a portion of the lands which it was to receive under the contract. The complainant in that bill sought thereby to have revoked and declared forfeited the benefits stipulated for by said agreement in favor of the Alabama Great Southern Bailroad Company, and of all other railroad — 640 — companies, except tbe South & North Ala. Railroad Company. Decrees pro confcáso were entered against both the defendants. A final decree was rendered' in which it was recited that “it appears from the allegations of the bill and the admissions of complainant in open court that the South & North Alabama Railroad Company has complied substantially with the terms and conditions of the agreement of April’21st, 1871, and has agreed with the complainant on the boundaries of the lots or parcels of land to which the South & North Alabama Railroad Company is entitled under said agreement, being part and parcel of the lands therein described, and as to the lands so designated and set apart to tlie South' & North Alabama Railroad Company, and as to all other right's acquired for its use, by said South & North Alabama Railroad Company under said agreement, the said' agreement remains unaffected by this decree.” It was decreed that said agreement be revoked, annulled and declared void and of no effect as to the Alabama & Chattanooga Railroad Company a,nd its successor, the Alabama Great Southern Railroad Company, and as to all other railroad companies and all other persons; .but the decree expressly reserved the right of the South & North Alabama Railroad Company for its own use under said agreement. The conclusive effect of this decree upon the rights of the Alabama Great Southern Railroad Company was fully recognized in the case above cited. The result- of the decree was to exclude all claim by that company upon any lands of the Elyton Land Company covered by the terms of the contract in question, and to leave the interest of the South & North Alabama Railroad Company in the strip of land 'involved in this suit undixninished, and, indeed, augmented, certainly to the extent of the exclusion of the Alabama Great Southern Railroad Company from participation in the benefits of the contract. The decree just referred to was followed by a deed, executed in April, 1882, whereby the Elyton Land Company conveyed to the South & North Alabama Railroad Company certain lands which were accepted by the latter company as the residue of the lands to which it was entitled under the contract of April 21st, 1871. It was again recited in this deed that the Ely-ton Land Company claimed that the Alabama & Chattanooga Railroad Company and all other railroad companies except tlie South & North Alabama Railroad Company had failed to comply with the terms and conditions of said original contract or agreement, and that said agreement was revoked and annulled as to all other companies or persons ex — 641 — cept tbe South & North Alabama Railroad Company. It was expressly stipulated in that deed that the right of the grantee therein, acquired by said original agreement, to the strip of land thirty-five feet wide, a portion of which is involved in this suit, should remain in full force and effect, but that the right-of-way over said strip was abrogated as to all other railroad companies. It is contended for the appellant that the agreement of April 21st, 1871, together with the maps of its property made and published' at that time, effected a dedication of the strips of land, a portion of which is involved in this suit, for the purposes stated in the agreement, and that this dedication was irrevocable, and could not be affected by the decree and the deed of 1882 above referred to. It is further contended that the erection of the depot on the strip in controversy is a misuser and a diversion of it from the purposes to which it was devoted by the dedication, which entitles the plaintiff to maintain ejectment for the recovery of the property. The consideration that railroads are devoted to public uses affords the justification for the exercise of the power of eminent domain for the acquisition of private property for railroad purposes. But the land held by a railroad company for the purposes of its enterprise, whether acquired by condemnation proceedings or by purchase from the owners, is, so far as the right of property is concerned, private property. The incidents of private ownership attach to it. The title is in no manner vested in the public, or in any part of the public as such. The title of the railroad company is as exclusive as that of any sole grantee in a conveyance of land. It must use the property for the public purposes for which it was acquired under public authority. Though the property must be so used, still the ownership is private, and the public do not share in such ownership. The public are entitled to use the property, but they use it as the property of the company, and the company is entitled to compensation for such use. The law secures to the company the exclusive possession and dominion of the property, and only requires that it be devoted to the purposes of public use and convenience to subserve which its acquisition was authorized. Land set apart for a railroad right-of-way, if accepted by the railroad company, is taken as the company’s private property and for its individual profit, though such company by taking the property charges itself with a public duty as to the use to which the property is to be devoted. The acceptance by the company is in its own behalf, and can not properly be — 642 — said to be in bebalf of tbe public. A dedication is “an appropriation of land to some public use made by tbe owner of tbe fee, and accepted for sucb use by or on bebalf of tbe public.” Tbe public is .treated as tbe grantee, and tbe gift enures immediately tq tbe public. — 5 Am. & Eng. Ency. of Law, 395, 399; Steele v. Sullivan, 70 Ala. 589. Dedication is not a mode of conferring a private property right in land. • Tbe only cases, not controlled by special statutory provisions on tbe subject, in wbicb we bave found tbe donation of land for railroad purposes spoken of as a dedication involved only tbe assertion of a claim to tbe property in. question by tbe railroad company itself; and in sucb cases tbe claim was either disallowed, or was rested, not upon a common-law dedication, but upon an adverse possession by tbe railroad company, or upon a state of facts raising an estoppel en pais against tbe bolder of tbe legal title wbicb would bave precluded him from asserting bis title against any one who bad occupied and improved tbe land with bis knowledge and consent under similar circumstances. — Morgan v. Railroad Company, 96 U. S. 716; Texas & New Orleans Railway Co. v. Sutor, 56 Texas, 496; 11 Am. & Eng. R. R. Cases, 506; Daniels v. Chicago & N. W. R. Co., 35 Iowa, 130; Forney v. Calhoun Co., 86 Ala. 463. It seems that when the act to be relied upon as tbe acceptance of a proposed appropriation of property is to be done, not by tbe public, or in bebalf of tbe public, but by an individual or by a private corporation, intending to take tbe property in its own bebalf for use in a business enterprise to be prosecuted for its own profit, and tbe property is to be acquired as private property and for private gain, so that tbe public are not to share in the ownership or in the benefits of ownership, but tbe new private proprietor, by taking tbe property for tbe purposes in view, only charges itself with tbe duty of using tbe property for public purposes on receiving compensation for sucb use; then sucb appropriation of tbe property, to be binding upon tbe bolder of the legal title, must be effected by bis contract, grant or conveyance, unless be has precluded himself from asserting bis title as tbe result of a state of facts wbicb would bave a like effect against him in favor of a purely private party; and that it does not follow that sucb an appropriation is effected because tbe act of tbe proprietor would bave amounted to a common-law dedication if tbe gift bad enured immediately to tbe public, and a private ownership for private profit bad not intervened. It seems that a railroad company can not bold its road, rights of way, depot grounds or — 643 — other property against tbe former proprietor thereof, unless its alleged interest therein has been secured to it in one of the modes provided by law for the vesting of private property rights in private parties. In the cases found by us in which the claim of a railroad company to such-property has been rested solely upon a state of facts which would have amounted to a dedication if the appropriation had been for a public use, such claim has not been allowed ; and the rejection thereof has been put upon the ground that such an interest in property could not be conferred upon a private paity by what is known to the law as a dedication.— Watson v. Chicago & St. Paul R. Co., 46 Am. & Eng. R. Cases, 543, a decision by the Supreme Court of Minnesota; Todd v. Pittsburg, St. W. & C. R. Co., 19 Ohio St. 514. But, even if it be conceded that the contract of April 21st, 1871, if standing alone, should be given effect as an irrevocable dedication of the property in question as a perpetual right-of-way for all raidroad companies doing business in and through the city of Birmingham, and that other railroad companies could claim the benefit of that dedication and would be entitled to prevent the appellee from appropriating the property to a purpose inconsistent with its use as a common right-of-way; yet the Elyton Land Company is not -now in a position to assert such claim against the South & North Alabama Bailroad Company. In the first place, it. plainly appears that the appellant obtained the decree on the bill in chancery above referred to by representing that the appropriation of lands, including that involved in this suit, which was provided for by the contract of April 21st, 1871, was conditional and revocable, and the adjudication that such was the effect of that contract was necessarily involved in the decree then made. Furthermore, the deed of April 28th, 1882, was, in effect, a final settlement and adjustment between the- parties to this suit of their respective rights under the contract of April 21st, 1871. It plainly appears from the recitals contained in that deed that the appellant thereby formally admitted that the claims of all other railroad companies to participate in the use of the strip of land, a portion of which is involved in this suit, had been duly and rightfully abrogated; and that the ap-pellees’ right to the exclusive use of that land for the purpose to which it was devoted by the original contract was fully recognized. The recital in that deed of the reservation of the appellee’s right in said strip, and the forfeiture of the claims of all other railroad companies thereto, was a particular recital of material facts which entered into the con644 sidexation moving to tbe appellee for tbe covenant and releases tben made by it. Tbe appellant having obtained tbe decree above referred to by representing tbe instrument upon wbicb it now relies as having; an operation wholly different from that now sought to be imputed to it, and having, in its subsequent deed, solemnly admitted as a material fact that tbe appellee alone is entitled to use tbe land in dispute as a right-obway, is now estopped from setting up a claim inconsistent with such a representation and admission. Tbe proceedings in tbe chancery cause and. the recitals in tbe deed referred to show solemn admissions by tbe appellant that tbe land in dispute was not irrevocably dedicated, as is now claimed, and tbe appellant is bound by those admissions, certainly so far as concerns its present claim against tbe appellee. — Pratt v. Nixon, 91 Ala. 192; Jones v. Morris, 61 Ala. 518; Tait v. Froto, 8 Ala. 543; Brown v. Hamil, 76 Ala. 506; Caldwell v. Smith, 77 Ala. 157; Hill v. Huckabee, 70 Ala. 183, Bigelow on Estoppel (5th Ed.) 366 et seq; 7 Am. & Eng. Ency. of Law, 7. Tbe extent of tbe interest acquired by tbe appellee in tbe land in dispute is to use it as a right-of-way. Tbe appellant has not deprived itself of tbe right to confine the appellee to this particular use of tbe property, though it can no longer claim that other railroad companies are entitled to share in such use. Tbe claim now made is that tbe erection of a freight depot and other structures on tbe strip is a diversion of tbe property from tbe purpose to wbicb it was appropriated. In tbe interpretation of an agreement regard is to be bad to tbe situation of tbe contracting parties at tbe time it was made, tbe occasion wbicb gave rise to it, and tbe obvious design intended to be accomplished. — Tennessee & Coosa R. Co. v. East Ala. Railway Co., 73 Ala. 444. Eor reasons already stated, tbe appellant can not now deny that tbe appropriation of tbe property for tbe particular use mentioned was conditional, and that tbe right to participate in tbe use was forfeitable by any railroad company which should fail within a reasonable time to comply with tbe conditions imposed. According this meaning to tbe contract, and it is plain that tbe contingency of only one railroad company becoming entitled to the benefits offered by tbe contract was within tbe purview of its terms. Tbe appellant has admitted by its deed that such contingency has happened, that all other railroad companies other than tbe appellee have forfeited all claims under tbe contract to tbe use of tbe strip in dispute, and that tbe right to use it for tbe stipulated purpose is vested in tbe appellee alone. — 645 — Tbe parties are to be treated as baying contemplated tbe possibility of tbe appellee acquiring tbe exclusive use of tbe strip as a rigbt-of-way for its railroad alone. It is to be observed that another provision of tbe same, contract secured to tbe appellee tbe perpetual and free use of tbe rigbt-of-way, one hundred'feet wide, of tbe Alabama & Chattanooga Railroad Company (Ala. Gt. Southern R. Co. v. South & North Ala. R. Co., 84 Ala. 570), so that tbe result of tbe appellee’s compliance with tbe terms of tbe contract was to secure to it one rigbt-of-way to be enjoyed by it in' common with one or more other railroad companies, and also an exclusive right of way in another strip. In view of tbe fact that tbe use of tbe rigbt-of-way of the Alabama & Chattanooga Railroad Company was secured to tbe appellee, tbe question to be determined is, did tbe appellant in stipulating for an additional rigbt-of-way, which, might become vested in tbe appellee exclusively, intend, in the event of such right so becoming exclusive, that tbe strip so appropriated should not be occupied by depots or other buildings adapted to railroad purposes, but should remain open so that tracks could be run over it. Such a meaning can not be imputed to tbe contract unless a railroad rigbt-of-way is an interest of such limited scope that tbe land included therein must be devoted by tbe railroad company exclusively to a tract or tracts over which trains may pass.' It is a matter of common knowledge that tbe railroad business involves tbe use, not only of cars and tracks, but of buildings and structures of various kinds. It was contemplated that tbe strip of land in dispute in this case should be used as a rigbt-of-way in a city. Tbe place was expected to be tbe scene for the. transaction of many phases of tbe business different from but incident to tbe mere act of carrying persons or things. It was to be tbe place for receiving, deliv-ing, storing and transhipping freight. In such places it is frequently necessary for tbe convenient transaction of a railroad business to have platforms, warehouses, lumberyards, elevators, cattle-pens, engine-houses, car-sbeds, depots, repair-shops, and other like facilities contiguous to' tbe tracks. Tbe space which is commonly called tbe railroad rigbt-of-way is, in populous localities, generally found dotted with structures, other than tbe tracks, which are necessary or convenient for tbe transaction of tbe business of a common carrier; and we think that tbe erection of such structures is to be regarded as within tbe contemplation of tbe parties to a contract which stipulates for tbe use of land in such a locality as a railroad rigbt-of-way, unless tbe — 646 — contrary appears from the terms of'tbe contract. Ordinarily, tbe right-of-way of a railroad company is its exclusive property, and the company is entitled to its free and unobstructed use. — Memphis & Charleston R. Co. v. Womack, 84 Ala. 149. The company is entitled to an absolute and exclusive possession, so far as to secure fully every purpose for which the railroad is made and used. — Tenn. & Coosa R. Co. v. East Ala. Railway Co., 75 Ala. 524. The question is, what are the uses to which the right-of-way may be devoted. The "Western Railroad Corporation was authorized by its charter to lay out its road, not exceeding five rods wide, through the whole length, and to acquire such strip by condemnation proceedings. In reference to the rights of the company within this area, Shaw, C. J., delivering the opinion of the Supreme Court of Massachusetts, said : “To the extent of five rods, it appears to us the legislature intended that the franchise of this corporation should extend, for any and all purposes incident to the object of its creation. It was contended in argument, that their franchise for public purposes extended only to the use of this strip of .laud as a way, and that if they had occasion for buildings and storehouses, as incident to their operations as carriers of persons and merchandise, they were to be regarded in their latter capacity as carrying on a distinct business, for their own profit, and therefore that such buildings were not to come under the same franchise. But no such limitation is contained in the act of incorporation, and none such results from the nature of its provisions. The establishment of the rail track, and the maintenance of engines and cars, for the transportation of persons and goods, are all combined together, as one public object to be attained, and the privileges incident to the one are incident to the other. No doubt, in practice, the main use of the strip of land of five rods in width, in the greater part of its extent, will be for sustaining the track for the trains to pass over. But such restriction of its use is not found in the act; and therefore, when the corporation have occasion to use any part of such strip of five rods for any of the purposes incident to their creation, it is within their franchise.” And,, under the law of that State exempting public works from taxation, it was decided in that case, “that this railroad corporation are not liable to taxation, for the' land of the width of five rods, located for the road, nor for any buildings or structures erected thereon, so that they be reasonably incident to the support of the railroad, or to its proper or convenient use — 647 — for the carriage of passengers and the transportation of commodities; and that this includes engine and car houses, depots for the accommodation of passengers, and warehouses for the convenient reception, preservation and delivery of merchandise, and all goods and articles carried on the road.” Inhabitants of Worcester v. Western R. Corporation, 4 Met. 564. That court has, in later cases, continued to recognize the right of a railroad company to occupy with buildings or other structures the land acquired for its railroad, so long as the mode of occupation is necessary or proper for the convenient exercise of the privileges and the performance of the functions defined by its charter. — Proprietors of Locks & Canals v. Nashua & Lowell R. Co., 104 Mass. 1; Boston Gas Light Co. v. Old Colony & Newport Railway Co., 14 Allen, 444; Brainard v. Clapp, 10 Cushing, 6; Pierce v. Boston & Lowell R. Co., 141 Mass. 481. In Illinois Central R. Co. v. Wathen, 17 Bradw. (Ill. App.) 582, it was held that on land granted for “railroand and depot purposes” the company could permit the erection and use by private parties, without the payment of rent, of elevators, corn- cribs, lumber-yards and lime-houses, which facilitated the business of the company in the receipt, transportation and discharge of freight. In Western Union Telegraph Co. v. Rich, 19 Kansas, 517, it was held that a • railroad company may, for its own use in operating its road, construct a telegraph line over and along its right-of-way, and that by such use of the property it did not subject itself to an additional claim of the original land-owner for compensation. The opinion of the court was delivered by Judge Brewer, now an associate justice of the Supreme Court of the United States. In the course of the opinion it was said: “In short, the railroad company may use its right-of-way, not merely for its track, but for any other building or erection which reasonably tends to facilitate its business of transporting freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original land-owner.” The authorities support the conclusion that a railroad company may make any use of the land acquired by it for use as the right-of-way for its railroad, which, directly or indirectly, contributes to the safe, economical and efficient operation of the road, and which does not interfere with the rights of property pertaining to the adjacent lands. — Lewis on Eminent Domain, §§ 584, 588, and cases there cited; Gudger v. Richmond & D. R. Co., 43 Amer. & Eng. R. Cas. — 648 — 606; Railroad v. Deal, 90 N. C. 110. Tbe land bere in dispute must be treated for tbe purposes of tbis case as secured to tbe appellee alone as an additional right-of-way in tbe heart of a city. Tbe depot and other structures erected thereon afford such conveniences and facilities as a railroad company may be expected to provide for tbe transaction of its business in such locality. Tbe land is used for tbe purposes incidental and auxiliary to tbe transportation business authorized to be conducted on and over it; and, as tbe appellant can not complain of tbe exclusive character of tbe occupancy, tbe uses shown do not, in our opinion, constitute a diversion of tbe property from tbe purposes to which it has been devoted. Tbe conclusion is that tbe evidence does not support tbe claim that there has been a misuser by tbe appellee of tbe right-of-way in question. The right to maintain tbe action is based upon tbe alleged misuser. It is not intended to be admitted that, if such misuser bad been shown, tbe appellant would be entitled to a judgment in tbe statutory action in tbe nature of ejectment for land of which it could not bold possession, because, according to its claim, tbe appellee and other railroad companies were entitled to possess it and use it as a right-of-way. — Cincinnati v. White, 6 Peters, 431; 3 Brick. Digest, 324, § 27. Affirmed.