Summary
In Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459, the Alabama Court considered the provision of a deed which conveyed the right "to cut and keep clear all trees and undergrowth and other obstruction on said strip, and danger trees adjacent thereto where necessary."
Summary of this case from Patterson v. Duke Power Co.Opinion
6 Div. 671.
May 27, 1926.
Appeal from Circuit Court, Jefferson County; W. M. Walker, Judge.
Lange, Simpson and Brantley, of Birmingham, for appellant.
The rights of appellee are those conferred by the contract; and those not granted are reserved by the grantor. Since appellant has the fee-simple estate in the lands, and the contract in no manner limits appellant's rights as to placing structures thereon, the decree is in error in holding that appellant has no right to maintain the structure placed upon the land. Alabama G. S. R. Co. v. McWhorter, 202 Ala. 455, 80 So. 839. The decree is also in error in holding the appellee has the right to cut danger trees.
Martin, Thompson, Foster Turner, of Birmingham, for appellee.
The owner of the servient estate may use the surface of the right of way for any purpose which does not conflict with the paramount rights of the owner of the dominant estate; he may not make any alterations in his property by which the enjoyment of the easement will be materially interfered with. Ala. Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833, Ann. Cas. 1917C, 878; Ala. Power Co. v. Sides, 212 Ala. 687, 103 So. 859; Ala. Power Co. v. Scott (Ala.App.) 104 So. 873; 19 C. J. 983; S. A. L. Ry. v. Banks, 207 Ala. 194, 92 So. 117; Alex. City Co. v. C. of G., 182 Ala. 516, 62 So. 745. The appellee has the right to cut danger trees by the conveyance and by the statute. Code 1923, §§ 7199, 7019; Wiggins v. Ala. Power Co., ante, p. 160, 107 So. 85.
The Alabama Power Company filed its bill under the statute (section 9905 of the Code) to settle its title to a right of way over the land of defendant and to clear up all doubts or disputes concerning the same. Defendant made his answer a cross-bill. The issues thus formed make it necessary to determine the rights of the parties in two respects. These rights depend upon the proper interpretation of the grant of a right of way from Evans and wife, defendant's predecessors in title of the servient estate, to the power company, as affected by the agreed statement of facts upon which the cause was submitted for decree.
Complainant's transmission line is constructed along the center of the right of way. On one side of the way, within its limits, 4 feet from its border, a second line for the transmission of power has been constructed, and on the other side, also 4 feet from the border, a telephone line. Defendant has constructed a 5-room tenant house on his land adjoining the right of way, extending 15 feet over and upon the right of way, so that about 10 feet of the building stands within one of the transmission lines. The transmission line is suspended about 25 feet above the building, and has a capacity of 44,000 volts.
In the trial court it was decreed that defendant had no right to erect or maintain the house upon any part of complainant's right of way. The decree in this respect was properly rendered. Under its grant complainant was entitled to construct, maintain, and operate its transmission lines, and all telegraph and telephone lines, over and upon its right of way, "together with all the rights and privileges therein necessary or convenient for the full enjoyment or use thereof" for the purposes described, "and also the right to cut and keep clear all trees and undergrowth and other obstructions on said strip, and danger trees adjacent thereto where necessary." We think there can be no doubt that the dwelling house, resting in part upon complainant's right of way, is an obstruction such as complainant sought to guard against when it took a grant of its right of way from Evans. It involves, not only an obstruction to complainant's movements along its right of way in the work of maintaining its lines, but also it is so located in relation to its power lines as to constitute a hazard of no small concern to both complainant and the occupants of the building. Moreover, the situation shown by the agreed statement of facts is one which, if acquiesced in by complainant, may be expected, under the peculiar status of law declared in Seaboard Air Line Railway v. Banks, 207 Ala. 194, 92 So. 117, to invite controversy as to right and title, of difficult solution, such as any prudently managed business corporation would seek to avoid.
Another controversy between the parties is as to the true meaning and effect of the stipulation concerning "danger trees," already quoted. The substance of defendant's (appellant's) contention is that the language is too indefinite and uncertain to sustain the decree rendered in the trial court whereby complainant was authorized "to enter upon the lands of the respondent adjacent to the right of way of the complainant herein [that is, in the decree] described at any time while using the right of way herein referred to and to cut from such lands of the respondent any trees which are at the time of such cutting dangerous to the works of the complainant, its transmission or telephone lines or other structures." We find no particular difficulty in construing "danger trees," as did the chancellor, in substance, to mean trees which, by reason of size or condition, and contiguity to complainant's right of way, involve a concrete threat of injury to complainant's transmission or telephone lines, and that trees which have come to be dangerous since the grant are to be included in the class guarded against. The statute, section 7199 of the Code, vests in power companies "the right and authority to remove outside of said rights of way such timber as may injure or endanger by shading, falling, or otherwise, any of its works, and for that purpose may acquire such timber by condemnation," and in Wiggins v. Alabama Power Co., 107 So. 85,1 this court spoke of trees so authorized to be condemned as "danger trees," rather as a matter about which there could be no doubt. That was a case in which there was a proceeding to condemn according to the statute, while here we have a case involving the construction of a grant, but that, it appears to us, makes not the least difference in the meaning of the language used. We are therefore in agreement with the chancellor in his interpretation of the grant on this point. It only remains to record our opinion that, in cutting trees under this stipulation of the grant, complainant will assume the burden of correctly ascertaining and cutting only such trees as fairly fall within the grant as we have construed it.
The decree further provided that defendant Collins, subject to the easement adjudged, "has the right to use such strip of land for any purpose which does not conflict with the paramount rights of complainant, and, subject to such rights, may cultivate the same, pass along and across it, and generally use it in any way which does not affect the rights of the complainant herein determined." In this the court was correct (Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833, Ann. Cas. 1917C, 878), nor is its decree in this respect drawn into question. In this connection see, also, Alabama Power Co. v. Sides, 212 Ala. 687, 103 So. 859.
The decree is affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.