Dancy v. Alabama Power Co.

• Decision Date: 16 November 1916
• Docket Number: 8 Div. 882
• Citation: 198 Ala. 504,73 So. 901
• Parties: DANCY et al. v. ALABAMA POWER CO. et al.
• Court: Alabama Supreme Court

73 So. 901

198 Ala. 504

DANCY et al. v. ALABAMA POWER CO. et al.

8 Div. 882

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Chancery Court, Morgan County; James E. Horton, Jr. Chancellor.

Suit by Unity D. Dancy, and others against the Alabama Power Company and others. From decree for respondents, complainants appeal. Reversed and remanded.

E.W Godbey, of Decatur, for appellants.

Eyster & Eyster, of New Decatur, and Thomas W. Martin, of Birmingham, for appellees.

McCLELLAN J.

"Notwithstanding the general principle that a trespass upon lands will not be enjoined in equity where the rights of the parties are legal and adequate relief can be afforded by a court of law, yet it is well settled that the courts of chancery will enjoin a corporation empowered to exercise the right of eminent domain when it is proceeding to take or injure land for its uses without consent of the owner and without legal proceedings to subject it to such use." M. & M. Ry. Co. v. Ala Mid. Ry. Co., 123 Ala. 145, 160, 26 So. 324, 327; So. Ry. Co. v. Hays, 150 Ala. 212, 215, 43 So. 487.

Code, § 3493, provides:

"Railroads, street railroads, and mining, manufacturing power, and quarrying, telegraph and telephone, and other corporations having rights and powers to condemn, may cause such examinations and surveys for their proposed railroads, or lines, as may be necessary to the selection of the most advantageous routes and sites, and for such purpose may, by their officers, agents, and servants, enter upon the lands and waters of any person, but subject to liability for all damages done thereto, and may, in the construction of their lines or sites, cross navigable streams, but must not impede the navigation thereof; may use, cross, or change public roads, when necessary, in the construction of their railways, switches, branches, lines, or buildings, and must place the public road so crossed, used, or changed, in condition satisfactory to the county authorities having the control thereof, but where practicable the railroads must go over or under the public roadway, or railroad track, and may also cross or intersect with any other railroad or street railway, and if such crossing or intersection cannot be made by contract or agreement, may acquire the rights thereto by condemnation in the mode provided by law."

It is manifest from the plain terms employed in the statute as well as from the purpose it would subserve and effect that the rights therein conferred are predicated of the sovereign power to take, to injure, or to destroy the property of others through its appropriation and devotion to a public use. In Ala. Inter. Power Co. v. Mt. Vernon, etc., Co., 186 Ala. 622, 650, 65 So. 287, 295, of this statute it was said:

"The temporary right, and consequent limited immunity ( State v. Simons, 145 Ala. 95, 40 So. 662), conferred by this statute, is necessarily incident to, and preliminary of, authorized proceedings to condemn, instituted by the entities mentioned therein. Manifestly the right thereby established is not conditioned--otherwise than upon an authoritative prerogative to exercise the power of eminent domain--upon any other contingency than that the corporations mentioned shall have in contemplation (not already instituted) proceedings to exercise the rights and powers to condemn. The obvious purpose of the statute was to allow preparatory, preliminary investigations and surveys in order to properly prepare for, and to intelligently invoke, condemnation proceedings. The right conferred is valuable and essential to the object it has in view."

In State v. Simons, 145 Ala. 95, 40 So. 662, it was held that the statute (section 3493) did not contemplate or intend to attempt to authorize a taking of property; the reason being that the rights thereby created and asserted were of a temporary character only--an entry for a preliminary purpose solely. The rule of that decision was followed in Ala. Inter. Power Co. v. Mt. Vernon Co., supra. In neither of those decisions was there considered by this court any question relating to a substantial injury to or destruction of property in or about the process of making the "examinations and the surveys" prescribed in the statute. In those decisions the rulings here pertinent were predicated on the assumption that the statute (section 3493) only authorized a preliminary entry to make "examinations and surveys," with the view to the discovery and ascertainment of the better, the more feasible route for the way to be condemned.

Limitations upon the power of eminent domain by the state and upon the authority of corporations and individuals to serve as...