Cooper v. Anniston & A.R. Co.

• Decision Date: 26 July 1888
• Citation: 4 So. 689,85 Ala. 106
• Court: Alabama Supreme Court
• Parties: COOPER ET AL. v. ANNISTON & A. R. CO.

4 So. 689

85 Ala. 106

COOPER ET AL. v. ANNISTON & A. R. CO.

Supreme Court of Alabama

July 26, 1888

Appeal from chancery court, Calhoun county; S. K. MCSPADDEN, Judge.

Bill by O. W Cooper and others against the Anniston & Atlantic Railroad Company, to enjoin defendant from proceeding further in laying out its right of way over plaintiffs' lands. In September, 1887, defendant filed its petition and application in the probate court of Calhoun county to have certain lands belonging to the complainants condemned for a right of way. Seven commissioners of award were appointed, who awarded to complainants compensation for the lands sought to be taken and the probate court allowed the railroad to go on in laying out its right of way and in the construction of its road. The grounds on which complainants ask for an injunction in this case are that errors and irregularities occurred in the condemnation proceedings in the probate court; that the railroad company already has one right of way on which it is now operating and transacting its business; that the compensation awarded to complainants by the commission is inadequate to the value of the property so condemned, and is not a just compensation therefor; and that the railroad corporation is largely indebted, and is insolvent, and that therefore, a just compensation cannot be obtained by pursuing an appeal from the award of the commissioners to the circuit court from the probate court, as allowed by law. Defendant answered, denying all the material allegations of the bill and also demurred to the bill for want of equity, and because the complainants had a full, adequate, and complete remedy at law; and then moved the court to dissolve the injunction. Upon the hearing the injunction was dissolved. Complainants appeal.

E H. Hanna, for appellants.

Brothers, Willett & Willett, for appellee.

STONE C.J.

If any errors of law were committed in the condemnation proceedings alleged to have been had in this case, they should have been taken advantage of before the probate judge, or, on the appeal to the circuit court, if they had not been waived by the course pursued in the primary trial. Such errors furnish no ground whatever for equitable interference. Mills, Em Dom. § 323; Ewing v. City of St. Louis, 5 Wall. 413; Secombe v. Railroad Co., 23 Wall. 108. Nor is there anything in the objection that, having once obtained a right of way, the railroad company is bound to adhere to it, and cannot proceed for a further condemnation. The power is continuous, and co-extensive with the wants of the corporation. It should be a clear case of abuse, to justify withholding relief on the ground that the easement asked for is not necessary to the successful operation of the railroad. 1 Ror. R. R. 274 et seq.; Railroad Co. v. Wilson, 17 Ill. 123; Fisher v. Railroad Co., 104 Ill. 323; Smith v. Railroad Co., 105 Ill. 511; Railroad Co. v. Devaney, 42 Miss. 555; Railroad Co. v. Railroad Co., 26 Kan. 669; Railroad Co. v. Lovejoy-, 8 Nev. 100 . The amended bill charges that the railroad company is insolvent, and will not...