Highland Ave. & B. Ry. Co. v. Birmingham Union Ry. Co.

• Decision Date: 24 June 1891
• Court: Alabama Supreme Court
• Parties: HIGHLAND AVE. & B. RY. CO. v. BIRMINGHAM UNION RY. CO.

9 So. 568

93 Ala. 505

HIGHLAND AVE. & B. RY. CO. v. BIRMINGHAM UNION RY. CO.

Supreme Court of Alabama

June 24, 1891

Appeal from chancery court, Jefferson county; THOMAS COBBS Chancellor.

Bill for an injunction by Birmingham Union Railway Company against Highland Avenue & Belt Railway Company. Motions to dismiss the bill for want of equity, and to dissolve the injunction and a demurrer to the bill, were overruled. Defendant appeals.

Alex. T. London, for appellant.

Hewitt, Walker & Porter, for appellee.

WALKER J.

It appears from the bill as amended that the complainant had, for about five years before the commencement of the suit, been operating a horse-power street railroad over and along Nineteenth street, in the city of Birmingham, as that street extends from Sixth avenue to and beyond Tenth avenue, in said city, and that it had duly acquired a right of way for its said railroad along said route. It is further shown by the bill that when it was filed the defendant had been for some time, and was then operating a railroad by steam-power on a single track on and along Tenth avenue, in said city from Twenty-First street westerly, on and over and across complainant's tracks at the crossing of Tenth avenue and Nineteenth street; that defendant was then constructing another track on Tenth avenue, which it was about to build across complainant's line of railroad and right of way at said point, without paying complainant any compensation therefor, and without the consent of the complainant, and without other authority of law. The bill alleges that the crossing of complainant's right of way and tracks by the defendant's additional track will greatly damage complainant by the wear and tear of its cars crossing the same, and keeping said crossing in good repair, and otherwise greatly inconvenience and damage complainant. The prayer was for a temporary injunction to restrain and enjoin the defendant from crossing complainant's right of way and tracks at said point where Nineteenth street crosses Tenth avenue until the defendant is legally entitled to appropriate complainant's said right of way according to law, and that on the final hearing said injunction be made perpetual, or retained until the defendant is legally entitled to cross said right of way by the condemnation thereof, or by an agreement with the complainant. A temporary injunction was granted according to the prayer of the bill. The defendant interposed an answer and demurrer to the bill, and also filed motions to dismiss the bill for want of equity and to dissolve the injunction. The appeal is from a decree overruling the demurrer to the bill, the motion to dismiss the bill for want of equity, and the motion to dissolve the injunction on the denials of the answer. The defendant's answer, under the oath of its president, denies that complainant owns the right of way at the place where the two lines intersect, and alleges that the defendant owns the right of way on which complainant's track is laid at that crossing, and is entitled to build thereon its additional track, and is not bound to pay complainant for the right to make the proposed crossing.

The contest, as disclosed by the record, is between two street- railroad companies, each of which is already using a thoroughfare of a city for the purposes of its business. As it does not appear that the city is interposing any objection to the maintenance and use of the respective structures of the complainant and of the...