Evans v. Savannah & W. Ry. Co.

• Decision Date: 02 May 1890
• Citation: 90 Ala. 54,7 So. 758
• Parties: EVANS v. SAVANNAH & W. R. CO.
• Court: Alabama Supreme Court

7 So. 758

90 Ala. 54

EVANS v. SAVANNAH & W. R. CO.

Supreme Court of Alabama

May 2, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Webb & Tillman and J. M. McMaster, for appellant.

Chisolm & Whaley, for appellee.

CLOPTON J.

Appellant sues to recover damages for injuries alleged to have been done to his property by defendant's construction operation, and maintenance of a railroad track along a public street fronting on his property, designated as "Twenty-Ninth Street." Plaintiff's lot and the adjacent lands were formerly owned by the Elyton Land Company, which company divided the lands into lots, and caused two maps to be made,-one in 1871, and the other in 1886,-showing the various lots, streets, and avenues. Upon each of the maps a street was sketched, and designated as "Twenty-Ninth Street." On September 28, 1886, the company sold and conveyed to R. W. Boland a block of land described on the maps as "Block Numbered 435," which was bounded on the west by Twenty-Ninth street. On October 1, 1886, Boland conveyed to plaintiff an undivided half interest in a part of the block and on January 1, 1888 conveyed to him the other half interest, and his entire interest in the remainder of the block. The railroad track, and the embankment on which it is placed, were constructed by the Columbus & Western Railroad Company in 1887, and completed in October of that year, which company, and the Savannah & Western Railway Company, were subsequently consolidated, and merged into a single corporation, under the name of the latter company. On his title thus acquired, and on the theory that the street had been dedicated to the public use, plaintiff asked the court to instruct the jury that he had the right in this action to recover the entire damage done to the lot by the construction of the embankment, notwithstanding his title may have been acquired since its construction. This charge the court refused to give, and instructed the jury that plaintiff was not entitled to recover for any damage or injury which may have been done to that part of the lot which was conveyed by the deed of Boland, dated January 1, 1888, by the erection of the embankment prior to that date, or by its subsequent maintenance. These charges present the main and only material questions requiring consideration and decision.

So far as concerns the part of the block to which plaintiff subsequently acquired title, the gravamen of the action-the sole ground on which plaintiff can be entitled to recover damages-is that the embankment was unlawful, and therefore a nuisance which defendant had maintained and continued. The complaint does not aver that the work was done in an improper or negligent manner, and the evidence shows that the embankment was constructed with care and skill, and in a manner conforming to the grade of other railroads at crossings on First avenue. A railroad authorized by law to be built is not a nuisance, if constructed with proper care and skill, and the right of way is first obtained. Defendant was incorporated under the General Laws, and was authorized by its charter to construct a road from Goodwater to Birmingham, Ala. Section 21 of article 14 of the constitution provides: "Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any points in this state." The statutes prescribe the mode in which corporations for the construction of railroads shall be formed. They require that the terminal, and such other points along the line of the proposed railroad as may be deemed proper, shall be set forth in the written declaration required to be filed with the secretary of state. They invest such corporation with power to acquire and hold, by gift or purchase, or by condemnation in the mode prescribed by law, such lands as may be necessary for a way and right of way, not exceeding 100 feet in width throughout the entire length of the road. Code, §§ 1573, 1574-1580.

Twenty-Ninth street is not within the corporate limits of any town or city, and has been declared a public road by the court of county commissioners. Hence the cases of Railway Co. v. Witherow, 82 Ala.

190, 3 South. Rep. 23, and Perry v. Railroad Co., 55 Ala. 413, are not applicable. The defendant being authorized by its charter, granted in accordance with the statute, to construct a railroad between fixed and terminal points, stated in the declaration of incorporation, if, in constructing the road, it becomes necessary to take a part of a highway dedicated to the public use by the original owner, and not within the corporate limits of a town or city, the authority to do so arises from necessary implication. Mobile & G. R. Co. v. Alabama M. Ry. Co., 87 Ala. 501,

6 South. Rep. 404. The right of way along Twenty-Ninth street was granted to the Columbus & Western Railroad Company by the Elyton Land Company; at what time the bill of exceptions does not state, but certainly...