Ex parte City of Bessemer

• Decision Date: 06 June 1940
• Docket Number: 6 Div. 649.
• Citation: 197 So. 20,240 Ala. 52
• Parties: EX PARTE CITY OF BESSEMER. v. GOODWYN, JUDGE. CITY OF BESSEMER
• Court: Alabama Supreme Court

197 So. 20

240 Ala. 52

EX PARTE CITY OF BESSEMER.

CITY OF BESSEMER v. GOODWYN, JUDGE.

6 Div. 649.

Supreme Court of Alabama

June 6, 1940

Rehearing Denied June 27, 1940.

Original petition of the City of Bessemer for mandamus requiring Gardner Goodwyn, as Judge of the Circuit Court of Jefferson County (Bessemer Division), to set aside an order sustaining a demurrer and dismissing motion of petitioner to transfer to the equity docket the pending cause of City of Bessemer v Wilkes; and petition of M. E. Wilkes to intervene.

Writ of Mandamus granted.

G. H Bumgardner and H. H. Sullinger, both of Bessemer, for petitioner.

Horace C. Wilkinson, of Birmingham, and L. H. Etheridge, of Bessemer, for respondent and intervener.

THOMAS Justice.

The City of Bessemer seeks a mandamus to require the Circuit Judge to set aside his ruling sustaining a demurrer to and dismissal of the city's motion to transfer the pending cause of the City of Bessemer v. Wilkes to the equity side of that court's docket.

The initial proceeding in the probate court was by the City of Bessemer against Wilkes et al., for condemnation of a right of way across properties described (including those of Wilkes) for use of the city in building an electric transmission line. The petition of date of January 18, 1939 for condemnation was for a right of way for electric transmission lines over "a lot on the Wilkes property located wholly without the corporate limits of the City of Bessemer." It is insisted that the petition in the probate court and the resolution adopted by the City Council of Bessemer authorizing condemnation failed to aver that the right of way sought to be acquired was for the purpose of serving the needs of the citizens of that municipality.

It is further insisted that the requirement in such condemnation proceedings is to aver in legal effect that the action was for the purpose of "serving the needs of citizens of the municipality."

The decision in J. Blach & Sons, Inc., v. Hawkins, Probate Judge, 238 Ala. 172, 189 So. 726, 727, 728, is cited to uphold the ruling of the circuit court that such averment is essential to quicken into exercise the jurisdiction of the probate court to entertain the condemnation proceedings. The expression in the fourth paragraph: "The petition in the probate court for condemnation seems to studiously avoid averring that the power was to be transmitted for the purpose of serving 'the needs of its citizens,' a defect pointed out by the 14th ground of demurrer which was erroneously overruled and which said averment was essential to show the municipality's right to condemn the land in question and to give the probate court jurisdiction." [ Italics supplied.], on first blush seems to sustain that contention. However, when the opinion as a whole is considered with the result announced, it is evident that the court did not mean to so hold. The appeal in that case was from a judgment of the circuit court dismissing the petition of the property owner, praying for the issuance of a writ of prohibition to restrain the probate court from entertaining the condemnation proceeding. This court held that the landowner was not entitled to such writ but under the alternative prayer of the petition was entitled to the writ of mandamus, in the absence of adequate remedy by appeal, to review the ruling on demurrer. This has long been the well-settled practice. Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Watters et al., 180 Ala. 523, 61 So. 904.

It is not essential to the right of the municipality to condemn or of the power and jurisdiction of the probate court to entertain the proceedings that the right of way sought to be condemned should be located within the corporate limits or that the use should be restricted to the residents of a municipality. Code 1923, §§ 2001, 2295. These sections are a part of Chapter 43 of the Code, a part of one system of law, and when construed in pari materia authorize the acquiring and maintenance of such works for supplying gas "or electricity to the city or town and surrounding territory; to regulate the manner and rates for furnishing gas, electricity and water," etc.

Said Section 2295 provides: "Whenever in the judgment of the council of a city or town, it may be necessary or expedient for the carrying out and full exercise of any power granted by this chapter, the said town or city shall have full power and authority to acquire by purchase the necessary lands, or rights, easements, or interests therein, thereunder, or thereover, or for the purposes for which private property may be acquired by condemnation, may proceed to condemn the same in the manner provided by this chapter, or by the general laws of this state, governing the taking of lands or the acquiring of interests therein for the uses for which private property may be taken, and such proceedings shall be governed in every respect by the general laws of this state pertaining thereto, or by the provisions on the subject contained in this chapter, when the same are followed."

It is declared in this jurisdiction that mandamus will issue to compel the transfer of a cause of action to the equity docket of the court that equitable defenses may be availed of and where the same cannot be asserted at law. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843.

In Hendrix v. Southern Railway Co., 130 Ala. 205, 30 So. 596, 89 Am.St.Rep. 27, this court declared: "When the owner of land has knowledge of the fact that a railroad is proceeding to construct its road on his land, and allows it to expend large sums of money for this purpose, and for subsequent improvements upon said road bed and right of way, without interfering or forbidding the company to proceed, such owner is estopped from evicting the railroad company by action of ejectment."

There is analogy in City of Mobile v. Smith, 223 Ala. 480, 136 So. 851; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann.Cas.1915B, 746.

The text books and decisions in other jurisdictions are to the effect that defects in condemnation proceedings may be waived by the landowner and acts which create an estoppel may be set up as a defense to any assertion of the invalidity of such proceeding later made by the owner. 11 C.J. p. 138, paragraph 103 and notes; 20 C.J. p. 1179, paragraph 541; 14 C.J. Sec p. 200, paragraph 52; 10 R.C.L. p. 230, paragraph 194; 10 R.C.L....