Alabama M. Ry. Co. v. Newton

• Decision Date: 03 November 1891
• Parties: ALABAMA M. RY. CO. v. NEWTON.
• Court: Alabama Supreme Court

10 So. 89

94 Ala. 443

ALABAMA M. RY. CO. v. NEWTON.

Supreme Court of Alabama

November 3, 1891

Appeal from the probate court, Montgomery county; F. C. RANDOLPH Judge.

Condemnation proceedings by the Alabama Midland Railway Company against Nancy Newton. A demurrer to defendant's plea of res judicata was overruled, and petitioner appeals. Appeal dismissed.

A A. Wiley and Tompkins & Troy, for appellant.

COLEMAN J.

The pleadings show that prior to December 16, 1889, appellant began in the probate court of Montgomery county ad quod damnum proceedings to condemn certain lands of appellee to be used as a right of way; and on the 16th December, 1889 the day to which the hearing had been continued, the damages were assessed by a jury at $560, and the order of condemnation regularly entered by the court. Appellant did not pay the damages found by the jury, or take possession of the land condemned, or prosecute the condemnation proceedings further. In December, 1890, more than six months after the order of condemnation was made, appellant began the present proceedings in the same court against the same party for the condemnation of the identical lands, less 10 feet on the south side of the lot. The appellee interposed the former proceedings and order of condemnation in bar of the present petition. The court overruled the demurrer to the pleas of appellee, and held that the question was res adjudicata, and dismissed the petition of appellant. The question is a new one in this state, but the principle involved has been adjudicated by the supreme courts of several of the states of the Union. Appellee principally relies upon the authorities furnished by the court of appeals and supreme court of Missouri. In the case of Leisse v. Railroad Co., 2 Mo. App. 105, it was held that, when proceedings instituted to condemn private property for public use for railroad purposes are abandoned by the railroad corporation because it is dissatisfied with the price fixed by inquest, it will be liable to the owner of the property for all damages sustained in consequence of such proceedings. This principle was reaffirmed in 5 Mo.App. 585, and affirmed by the supreme court of the state in 72 Mo. 562. The rights of the parties in ad quod damnum proceedings of this nature must depend upon the constitution and statutes of the state under which they are instituted. The case cited and principally relied upon from Missouri does not quote or refer to the statute under which the decision was rendered. It does refer to and cite in support of the conclusion of the court the case of Railroad Co. v. Lackland, 25 Mo. 515, where the statute is set out under which the proceedings in that case were instituted. The language of the act as there stated is: "The court shall enter judgment in favor of such owner against such company for the amount of damages assessed, and shall make an order vesting in said company the fee-simple title to the land." The question before the court was to determine at what period of time the right to compensation became vested and the title to the land transferred; and it was held that no order transferring the title could be made until all the preliminary steps pointed out in the act had been taken, and until this was done, and the judgment of the court rendered, the company had the right to discontinue their condemnation proceedings. The statute of this state is in some respects very dissimilar to that of the Missouri statute. Code, § 3216, provides that "the order of condemnation, upon the payment of the sum ascertained and assessed by the verdict of the jury, shall vest in the applicant the easement proposed to be acquired," etc. The amendment to this section, found in Acts 1890-91, p. 1134, in no way affects the principle of law under consideration. The effect of the act is to provide that the payment of the sum ascertained and assessed by the verdict of the jury shall be made a condition precedent to the vesting of the easement under the order of condemnation; and, under the principle of law declared in the Missouri authority, until this was complied with the petitioner had the right to discontinue his proceedings.

Section 3218 of the Code further provides that "the applicant may pay the damages and compensation assessed at any time within six months after the assessment thereof," etc "but, if he fails to pay the same within such time, such assessment shall cease to be binding on the owner of the lands, and the rights of the applicant thereunder shall determine; and, upon such failure, the applicant shall be liable to the owner for all damages the latter may have sustained by the institution of such proceedings, and including a reasonable attorney's fee," etc. Under...