Birmingham Ry. & Electric Co. v. Birmingham Traction Co.

• Decision Date: 18 December 1900
• Citation: 128 Ala. 110,29 So. 187
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. BIRMINGHAM TRACTION CO.

29 So. 187

128 Ala. 110

BIRMINGHAM RY. & ELECTRIC CO. v. BIRMINGHAM TRACTION CO.

Supreme Court of Alabama

December 18, 1900

Appeal from probate court, Jefferson county; E. H. Cabaniss, Special Judge.

Petition by the Birmingham Traction Company against the Birmingham Railway & Electric Company. From a decree for petitioner defendant appeals. Affirmed.

The proceedings in this case were instituted by the Birmingham Traction Company filing a petition seeking to have condemned a right of way and a crossing along and over the right of way and track of the Birmingham Railway & Electric Company, the point at which the crossing was to be made being in the town of Woodlawn, near Birmingham. It was averred in the petition that the Birmingham Traction Company was a corporation duly created and organized under the laws of Alabama, and had authority to construct, own, and operate railroads and street railroads in the county of Jefferson, and had authority to construct, own, and operate a line of street railroads in the city of Birmingham, to and through the town of Woodlawn, in said county; that it was constructing a line of road, to be operated by electricity, through the town of Woodlawn, and that it was necessary to have the right of way sought to be condemned, for the purpose of constructing said road; and that it had received the consent of the municipal authorities of the town of Woodlawn to so construct and operate its line along and across the street where the Birmingham Railway &amp Electric Company's line of street railroad is now operated. The respondent demurred to the petition, upon the ground that it did not show that the Birmingham Traction Company had power, under its charter or otherwise, to have condemned the right of way sought in the petition. This demurrer was overruled. Upon the hearing of the cause, the petitioner offered in evidence the act of the general assembly of Alabama, entitled "An act to enlarge the powers, rights, franchises and privileges of the East Birmingham Land Company, a corporation organized and chartered in Birmingham, Alabama, under the general laws of said state," approved February 11, 1887, as found in Acts Gen. Assem. 1886-87, p. 301. The defendant objected to the introduction of said act in evidence, because it was irrelevant, incompetent, and did not tend to show that the petitioner had the right to condemn the right of way and crossing sought to be condemned. The court overruled the objection, and the defendant duly excepted. The petitioner then offered in evidence the act of the general assembly entitled "An act to change the name of the East Birmingham Land Company, a corporation organized under the general laws of the state of Alabama, *** to the East Birmingham Land & Railroad Company, and to further enlarge the rights, powers, franchises and privileges of said corporation," approved February 25, 1889, found on page 582 of the Acts of 1888-89. The defendant objected upon the same grounds to the introduction of this act, and duly excepted to the court's overruling its objection. The petitioner then offered in evidence the proceedings in the probate court of Jefferson county incorporating the Birmingham Traction Company, with the certificate of incorporation of said company. The defendant objected to the introduction in evidence of these proceedings upon the same grounds, and duly excepted to the court's overruling this objection. These proceedings showed that the petition for incorporation was signed by J. H. Clark, John London, and Alex. T. London. The proceedings of incorporation were regular, and duly incorporated the Birmingham Traction Company; said George H. Clark, John London, and Alex. T London being the incorporators. The petitioner then offered in evidence a deed of trust executed by the East Birmingham Land Company to the Mercantile Trust & Deposit Company of Birmingham, on July 30, 1888, in and by which the said deed of trust of the East Birmingham Land Company conveyed to the Mercantile Trust & Deposit Company, in trust to secure $50,000 of first mortgage bonds, the property, rights franchises, and privileges of the East Birmingham Land Company mentioned and described in the proceedings for the incorporation of the Birmingham Traction Company. The petitioner then offered in evidence a deed dated August 24, 1897, from N.W. Trimble, special commissioner, to George H. Clark, Alex. T. London, and John London, in and by which said deed conveyed the property, rights, and franchises of the East Birmingham Land Company mentioned and described in said deed of trust to said George H. Clark, Alex. T. London, and John London. The petitioner also offered in evidence a quitclaim deed from the owners of the first mortgage bonds in the said East Birmingham Land Company and Mercantile Trust & Deposit Company, trustee, to the said George H. Clark, Alex. T. and John London, by which deed there was quitclaimed unto the said grantees all the right, title, and interest of the grantors, or any of them, in and to the property conveyed by the East Birmingham Land Company to the Mercantile Trust & Deposit Company. There was also introduced in evidence a deed dated August 25, 1897, from George H. Clark, Alex. T. London and wife, and John London and wife to the Birmingham Traction Company, by which deed the grantors therein conveyed to the Birmingham Traction Company all their right, title, and interest conveyed to the Mercantile Trust & Deposit Company, and by it conveyed to them, and which was purchased by them at the sale under foreclosure of said trust deed. It was also shown by the evidence introduced that the deed of trust to the Mercantile Trust & Deposit Company was regularly foreclosed upon default being made, for the payment of the debt secured thereby, by the East Birmingham Land Company, and that at the sale one Charles Turner was the highest bidder, and that the transferred in writing his bid to George H. Clark and Alex. T. and John London, to whom the special commissioners executed a deed to the property involved. It was also shown that the Birmingham Traction Company had acquired the right from the city of Woodlawn by ordinance, regularly adopted, to construct the street railway along the street railway where the crossing occurred. Upon the examination of several witnesses introduced by the petitioner, it was shown that the route of the Birmingham Traction Company along which the condemnation was sought was a new route. George H. Clarke, a witness for the plaintiff, after having testified that there were but three stockholders in the Birmingham Traction Company, who were George H. Clark, Alex. T. London, and John London, further testified that these stockholders met at the office of the company, and, all being present, decided to change the location of the East Birmingham Railway to the new route, along which the right of way was now sought to be condemned; that no minute was kept of this meeting, or of the decision of the stockholders to change such location, and no notice of such meeting was given to the stockholders prior to the time said meeting was held. The respondent moved to exclude the evidence of this witness, upon the ground that it did not appear that the said stockholders were called together by notice given to them, and that it appeared that no minutes of their action was kept. The court overruled the objection, and the defendant duly excepted. Upon the hearing of all the evidence, the court granted the application of the Birmingham Traction Company for an order of condemnation, and appointed commissioners to assess and report the damages and compensation to which the Birmingham Railway & Electric Company was entitled by law. To the rendition of this decree the defendant duly excepted. From this decree of the court the Birmingham Railway & Electric Company prosecutes the present appeal, and assigns as error the several rulings of the trial court to which exceptions were reserved. In this court the appellee, the Birmingham Traction Company, moved to dismiss the appeal, upon the ground that an appeal would not lie in condemnation proceedings direct to the supreme court from the decree rendered in the probate court.

Walker, Porter & Walker and R. H. Walker, for appellant.

Alex. T. London and John London, for appellee.

DOWDELL J.

In proceedings for the condemnation of land for public uses there is a manifest distinction between the law as it existed under Code 1886, art. 2, p. 698, embracing sections 3207-3220, and the present statute (Code 1896, art. 1), embracing sections 1712-1726. Under the former, only one hearing was provided from which an appeal could be prosecuted, and upon this hearing all questions of law and fact, including the assessment of damages to the landowner by a constitutional jury of 12 men, provided for under section 3210, were finally determined. Under the procedure as it exists under the present statute (Code 1896), there are two hearings from which appeals may be prosecuted; the first being upon the filing of the application, and before any assessment of damages is had, and is in its nature and character preliminary. Upon this hearing the question of whether or not the application for a condemnation should be granted is determined, and from such judgment of the court an appeal is authorized direct to the supreme court by section 1717. If, upon such hearing, the application is granted, then follows the proceedings for the appointment of commissioners to assess compensation and damages to the landowner, with provisions for hearing evidence by such commissioners in ascertaining the amount of damages and compensation; also the making of their report to the probate court, and the order to be made by said court thereon. Sections 1718, 1719. From the...