Collins v. Alabama Power Co.

• Decision Date: 27 May 1926
• Docket Number: 6 Div. 671
• Citation: 108 So. 868,214 Ala. 643
• Parties: COLLINS v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

108 So. 868

214 Ala. 643

COLLINS v. ALABAMA POWER CO.

6 Div. 671

Supreme Court of Alabama

May 27, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by the Alabama Power Company against H.W. Collins, and cross-bill by defendant. From the decree, defendant appeals. Affirmed.

Lange Simpson and Brantley, of Birmingham, for appellant.

Martin Thompson, Foster & Turner, of Birmingham, for appellee.

SAYRE J.

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, ...