Tuskegee Land & Security Co. v. Birmingham Realty Co.

MAYFIELD, J.

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.

*553 It also appears that on the 10th day of June, 1902, 6 months and 9 days prior to the conveyance by appellee to appellant, above referred to, the appellee for a valuable consideration executed and delivered a contract to the Birmingham & Atlanta Air Line By., its successors and assigns, giving it the right to lay railway tracks along Avenue A, in front of the lots described in appellee’s deed to appellant, and to operate cars and trains thereon, and released the railway from all damages to said lots, by reason of the laying of said tracks and operation of said railway. On the 30th day of April, 1902, 7 months and 1 day before appellee conveyed to appellant, and 1 year, 1 month, and 11 days before appellee conveyed or attempted to convey to the railway company the right to build its tracks on Avenue A and released it from damages, on that acount, for injury to the property in question, the city authorized the railway company to build, construct, and operate a steam and commercial railroad along said Avenue A, in front of this property; and it is alleged that the said railway did, on the 10th day of June, 1902, take possession of said avenue, in front of said property, and construct a double-track railroad along said avenue in front of the property in question, one of which tracks is between the center of said avenue and plaintiff’s property. The width of this avenue does not appear. The appellant, grantee, sues upon the covenants and warranties of appellee’s deed to him.

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 *554 originally filed and as subsequently amended. Tbe court sustained the demurrer in each instance. The plaintiff then declined to plead further, and suffered a final judgment, from which he appeals, assigning as error the various rulings of the court in sustaining defendant’s demurrer.

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 *555 which is alleged did, damage plaintiff and render his property less valuable than it would have been without such incumbrance.

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 *556 to appellant with covenants against incumbrances, then there was a breach, which was sufficiently alleged to constitute a cause of action. If this was not an incumbrance, then, of course, there was no breach or cause of action alleged.

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 *557 existence upon the extent or amount of the diminution in value, but extends to cases in which, by reason of the burden, claim, or right, the owner does not acquire complete dominion over the land which the grant apparently gives. — Mackey v. Harmon, 34 Minn. 168 , 24 N. W. 702 ; Demars v. Kochler, 62 N. J. Law, 203, 41 Atl. 720 , 72 Am. St. Rep. 642 . An easement in or over the land, or any part conveyed, is undoubtedly an incumbrance. The right of a third party to use water from a brook running through the land, and easements as to light and air, have been held to be within the term. The filing of a map by the department of parks, under a statute which provided that, on the final opening of a street, no compensation should be allowed for any building erected thereon after the filing of the map, was held to be an incumbrance. — Forster v. Scott, 136 N. Y. 577 , 32 N. E. 976 , 18 L. R. A. 543. The right of a city to open a street without paying damages for buildings erected in the bed thereof after the street was laid and piatted was held to be an incumbrance. — Evans v. Taylor, 177 Pa. 286 , 35 Atl. 635 , 69 L. R. A. 790. Water or gas rents past due, which are a charge upon the property, are incumbrances. — In re Wood’s Estate, 41 Leg. Int. (Pa.) 225; In re Gerry (S. C.) 112 Fed. 958 . An incumbrance is held to exist upon property which is subject to easements for widening a street or for building a sewer. — Blackie v. Hudson, 117 Mass. 181 ; Cadmus v. Fagan, 47 N. J. Law, 549, 4 Atl. 323 ; Barth v. Ward, 63 App. Div. 193 , 71 N. Y. Supp. 340 . Warvelle on Vendors (2d Ed.) 971 et seq. These same definitions and doctrines are announced, .and these and many other cases cited, by the text-writers on the subject. — See Suth. on Dam. (3d Ed.) vol. 3, §§ 620-630; Rawle on Gov. for Title (5th Ed.) c. 5, §§ 70-90.

*558 A covenant against incumbrance, usually expressed in American conveyances as a separate and independent covenant, is a covenant in praesenti, broken, if at all, when made, by tbe existence of the incumbrance, without regard to future or ultimate disturbance or damage, and does not run with the land; but, if coupled to the covenant for quiet enjoyment, as is usually the case in England, it is then a covenant in futuro, and runs with the land until a breach. — Rawle, Gov. for Title, § 70. In the case at bar it is in praesenti.

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 *559 the authority from the city or the Legislature, it will authorize the construction and operation of the railroad upon the street, and in that case it alone might prevent the present owner, the grantor, or his successors in interest, from recovering damages for injury to the property abutting upon the street by reason of constructing or operating the railroad. To this extent we hold that it is an incumbrance which will prevent the grantee, or his subsequent grantee, from recovering . damages against the railroad company, its grantee, or successor, for injuries or damages suffered as to the abutting property described in the incumbrance, consequent upon the construction or operation of the railroad in accordance with the grant.

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 *560 ing near the tracks), to build main lines and side tracks upon the avenue, to fill these tracks with cars and trains, which would impede travel by other modes, and might thereby greatly inconvenience plaintiff in the proper use of his property, and might greatly diminish the value of his property, render it less salable and desirable; for all of which he would be without remedy in damages, because of the conveyance by his grantor to the railroad company.

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.

Dowdell, C. J. and Simpson and Denson, JJ., concur.