City of Birmingham v. Alabama G.S.R. Co.
| Decision Date | 02 May 1893 |
| Citation | 13 So. 141,98 Ala. 134 |
| Parties | MAYOR, ETC., OF CITY OF BIRMINGHAM v. ALABAMA G. S. R. CO. |
| Court | Alabama Supreme Court |
Appeal from city court of Birmingham; H. A. Sharpe, Judge.
Bill for an injunction by the Alabama Great Southern Railroad Company against the mayor and aldermen of city of Birmingham. Plaintiff had decree, and defendants appeal. Modified and affirmed.
Gregg & Thornton, City Attys., for appellants.
A. G Smith, for appellee.
The bill is filed by the Alabama Great Southern Railroad Company to enjoin the enforcement of the following ordinance adopted by the mayor and aldermen of Birmingham, a municipal corporation: The bill avers that complainant is a railroad corporation, duly chartered under the laws of Alabama, owning and operating a railroad from Chattanooga, Tenn., to Meridian, Miss., passing through the states of Tennessee, Georgia, Alabama, and Mississippi, and connecting at its termini with other railroads, by association or otherwise, in the interchange of freight and passenger business, thus reaching and extending the commercial relations of the states wherein its road is located into many of the states of the Union, and affording transportation facilities to many of the states into the four states wherein the road is located; also affording transit across said four states to the freight and passenger traffic from many other states. The complainant's road was constructed under and by virtue of the powers contained in the charters of certain other railroad companies in the bill mentioned, and complainant now owns the road, with all the rights, franchises, privileges, and immunities of said other corporations. The complainant's predecessor, who constructed the road, was authorized to put down and use along the main line single, double, or treble tracks, and whenever necessary to intersect or cross any road or highway to construct across or upon the same, provided the company should restore the road or highway to its former state, or in a sufficient manner not to impair its usefulness. The company was also authorized to lay out the road so as not to exceed 150 feet wide. The road was completed in the year 1871, and has since been in operation to the present time. Prior to construction, a right of way 100 feet wide was obtained through section 36, township 17, range 3 west, which was a part of a field used for agricultural purposes, with no houses or habitations upon it. When the South & North Alabama Railroad Company determined to build its line of road so as to cross complainant's line about Elyton, the Elyton Land Company was formed for the purpose of building a city upon what is the present site of the city of Birmingham, and to that end acquired the title to the said land in section 36, township and range aforesaid, which now forms in part the site of said city, and entered into a contract with the said South & North Alabama Railroad Company by which that road crossed complainant's line of road at the present crossing, which is within the city of Birmingham; and complainant allowed that company to use and occupy a part of its right of way, and complainant acquired the right of way over the strip of land 35 feet wide immediately west of and adjoining its former right of way, and went into the use and occupation of the same. The Elyton Land Company then caused the city of Birmingham to be surveyed, and a map thereof made, which survey and map were made with the center line of complainant's road as the base line and foundation thereof, and now so remain; and said company designated on its map Twentieth street, as now located, so as to cross complainant's line of road and its said rights of way, as acquired by it, in said section, township, and range; and also designated on said map the lands extending from First avenue north to First avenue south as railroad reservations, the same being 1,000 feet wide, including the rights of way already mentioned, and extending through the proposed city. Thereafter the city of Birmingham was built up, as then surveyed and located, on both sides of the roads and rights of way of complainant and said South & North Alabama Railroad Company, and gradually grew from a few houses, from year to year, into its present proportions. The bill also avers that complainant has remained in possession of the said rights of way for many years, and during the year 1886 it caused to be made a plan for the improvement of its yards and property within the city, adjoining said Twentieth street, and in the year 1887 completed said improvements and built its yard at a cost of not less than $15,000; that the same was built with the full knowledge and assent of the authorities of the city, who in no manner objected thereto; and in the year 1889, the city, with the co-operation of complainant and the South & North Alabama Railroad Company, laid down granite block pavement over said street crossing, at great expense to complainant, as it became necessary for it to take up and relay its tracks in the most permanent and durable manner possible. The bill further avers that complainant is using four tracks across Twentieth street on its own rights of way; that its yards north and south of the street are immediately contiguous to it, and, in order to use its yards, it is necessary and absolutely essential that it be able to cross the street, and that a denial of such right, in the manner proposed by said ordinance, would so cramp its operations that it could not use its said road to any advantage, and would utterly cripple any attempt to...
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