The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1902-07-11


the Instrument when thus considered. The
court must place itself IN the situation OF
the contracting parties at the time OF ex-
ecutIng the instrument, and IL with
full understanding Of the force and i'm
port of the language thus illustrated, the
meaning and intention of the contracting
parties cannot be asceftained, the instru-
ment Is void for uncertainty. Every deed,
| says PaTson, c. J., IN the case just cited.
ought to be SO construed II 1t can, that
the intent Of the parties may prevail and
not be defeated. Applying this rule we
ind that before the execution of the deedi
the 26-foot strip had actually been loeat-
ed. The fact was in the minds of the par
ties and the deed refers to It, and recites
that the engineer of the grantor had des-
/ ignated the strip. The grantor was the
| owner of all the abutting property on
Avenue A to First avenue. and substan-
TALLY all on the other streets, and it sub.
sequently traced this strip upon its maps
OF the city. These facts make certain the
description of the premises conveyed, and
| under the well known maxim, I'D certum
est quod certum reddi potest" The de-
scription must DE neld to be sufficiently
definite to pass these for the estate in
! tended to be conveyed to complainant.
By the concurring force of the grant OF
the franchise from the State to the com
plainant to construct one or more tracks
in the highways described in the bill.
and the grant by the abutting owners of
! the twenty-six foot strip, the complainant
| acquired a valuable interest in the street.
| The nature of the estate is an incorpor-
ate hereditament which is properly with
in the meaning of the constitution, and
is protected by the constitutional limita-
| ton that property should not be taken
under the power of eminent domain with
out compensation being first made there
| for
The discretion of the court to either
dissolve or continue the injunction inso-
far as it restraints the respondent from
building its tracks longitudinally upon the
twenty-six foot strip has no field for
operation here.
This phase Of the injunction is based
not upon the purpose of preventing the
| oppressive or injurious exercise of the
power of eminent domain; but 1t is pre-
dicated upon the idea of preventing ire
parable injury to the complainants prop
erty. The respondent was incorporated
under the general laws Of Alabama, and
has no power to take, under the law of
eminent domain, any property of another
| railroad company except such as 1t is
authorized under the general statutes to
take. 1t Is provided in the constitution
| of 1901, page 242, that, Every railroad
| company shall have the right with Its
| road, to intersect, connect with or cross
any other railroad" Section % declares
that the Legislature may authorize the
taking of the property and franchises of
| Incorporated companies and sub1ectinR
them to public uses In the same manner
| in which the property and franchises
| OF individuals are taken and subjected
| but private property shall not be taken
Tor nor applied to public use unless lust
compensation be first made therefor
1t has been decided it this State In a
number OF cases that one railroad can
not take the property and franchises of
] another without special legislative au-
| thority.
The complainant asserts a right which
1t denominates the right of access of its
tracks In the streets and highways to
the abutting property. It would seem
that the right thus asserted consists first.
OF the franchises and easement to build
turnouts and spur tracks from its main
line across the street
Second-The right to load and unload
It's cars placed upon its main line or its
spur tracks or turnouts in the street
Third-An easement or license from the
AUDITING owners to build these tracks
from the property line upon the AUDITING
property. I deem it unnecessary In view
of the conclusion at which 1 have ar
rived, to discuss the question whether or
not the right exists to the right claim
ed by the complainant 1t may be con-
coded that Ii does exist as fully and as
clearly as complainant claims, and vet
1t may not be of such an exclusive char
acter as would prevent the respondent
from laying its tracks in the same high
ways parallel to the main tracks of the
complainant. 1t is obvious that the rights
claimed by complainant may be enjoy
ed by 1t although parallel tracks are
constructed by the respondent. The nee
essary taking of property of complain
I h.
tion with the tracks of the respondent
with those of the complainant, and at
the points where respondents tracks
would cross the rights of way and main
tracks and spurs and turnouts of the
complainant. The taking to this extent
upon the prepayment of compensation is
authorized by the constitutional provis-
ion to which reference has heretofore
been made, Section 90. constitution of
1901. 1t follows from this that as the
tracks of the respondent may be laid
in the manner indicated by taking only
so much property of the complainant as
the law authorizes respondent to take
the Injunction should be modified to
some extent
The right Of the respondent to build its
tracks upon the highways of the state
which are not within any Incorporated
city or town, is derived from the pro-
visions of sections 1884 of the code which
thorized in the construction of its road
to use or to cross or to change public
roads when necessary in the building,
! construction or maintenance Of Its road
way or tracks, but must place the pub
lie road used or crossed or changed, in
| a condition satisfactory to the authori-
ties of the county having control there
Of"
The question arises whether under this
general grant of power railroad compa-
nv can construct more than one track
along or across a public highway. The
power to do so is to say the least doubt
full AS stated in / Lewis En-. Dom. Sec.
III, D. $50: Under a general authority
to occupy street, the road must be laid
substantially at the grade of the street,
that Is, only such elevations and depres-
sions as are necessary to secure regular
grade and in the travelled road, and not
over the curb or sidewalks" Under such
general authority only a single track can
be laid down and that can only be used
for purposes of transportation.
After a careful consideration Of all the
matters which should govern the discre-
tion of the court in determining whether
an injunction should be dissolved or re-
tanned, I have arrived at the conclusion
that the injunction In this case should
be modified or dissolved pro tanto, as to
allow the respondent, subject to condi-
tons hereinafter described, to construct
one track along Avenue A westward
from Avondale to Twenty third street,
and to construct the number of tracks
in Avenue A from Thirty-second street
70 Txxya, ,fxr,1 tx4411 4