Jones v. Nashville, C. & St. L. Ry.

• Decision Date: 01 December 1904
• Citation: 37 So. 677,141 Ala. 388
• Parties: JONES ET AL. v. NASHVILLE, C. & ST. L. RY.
• Court: Alabama Supreme Court

37 So. 677

141 Ala. 388

JONES ET AL. v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Alabama

December 1, 1904

Appeal from Chancery Court, Jackson County; Wm. H. Simpson Chancellor.

Bill by the Nashville, Chattanooga & St. Louis Railway against Oscar Jones and others, to restrain defendants from interfering with complainant's servants in removing certain of defendants' fences and the construction of a side track etc. From a decree in favor of complainant, defendants appeal. Reversed.

The grounds upon which the relief is sought, and the facts as averred in the bill, are sufficiently shown in the opinion. The respondents demurred to the bill upon many grounds, among which were the following: (1) The bill shows that complainant has no title or easement for railroad purposes in the strip of lands sought to be appropriated as set out in the bill. (2) The bill shows that respondents are in possession of said lands under claim of title, and complainant seeks the aid of an injunction to protect itself in the trespass on said lands. (3) The bill shows that complainant seeks to take private property for public use without just compensation first paid to the owner. (4) The bill shows that complainant seeks to deprive respondents of their property without due course of law. (6) The bill is without equity, in that it shows a want of title in complainant, seeks to oust respondents of their possession by writ of injunction, under its protection to commit a trespass on their lands, and to take their property without just compensation, and deprive them thereof without due process of law.

Virgil Bouldin, for appellants.

Oscar R. Hundley, for appellee.

HARALSON J.

The Nashville, Chattanooga & St. Louis Railway Company, filed its bill against the defendants, to prevent interference with the employés of the company in removing defendants' fences from their land and constructing a side track for the use of the company.

Defendants filed a demurrer on specified grounds, going to the equity of the bill, moved to dismiss for want of equity, and to dissolve the temporary injunction issued in the cause. From a decree overruling the demurrer the appeal is prosecuted.

The right of the complainant is rested solely on the terms of section 25 of its Tennessee charter, passed on the 11th of December, 1845, and on an act of the General Assembly of Alabama, approved January 21, 1850 (Acts 1849-50, p. 171). The bill sets out in full said section 25 of the charter of said company in Tennessee,--but does not set out any other section or part of said charter,--which section is as follows: "Sec. 25. In the absence of contract, right of way one hundred feet, when--In the absence of any contract with the said company in relation to land through which the said road may pass, signed by the owner thereof, or by his agent or any claimant or person in possession thereof, which may be conferred by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the company shall have a good right and title thereto, and shall have, hold, and enjoy the same as long as the same (may) be used only for the purposes of the road, and no longer, unless the person or persons owning the said land at the time that part of the road which may be on said land was finished, or those claiming under him, her or them shall apply for an assessment for the value of said lands, as hereinbefore directed, within five years next after that part of said road was finished, he, she or they shall be forever barred from recovering the said land, or having any assessment or compensation therefor: provided, nothing herein contained shall affect the right of feme covert or infants until two years after the removal of their respective disabilities."

No part of the Alabama act is set out except the following "Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That the Nashville & Chattanooga Railroad Company be, and they are hereby authorized to construct their road through the northern portion of Jackson county, in this state, and they shall have and enjoy all the rights privileges and immunities, and be subject to such restrictions, as are granted to and imposed upon said company by the act incorporating the same, as far as said railroad lies in the county of Jackson," etc.

Section 10, art. 1 of the Constitution of this state, 1819, provides that no person "shall be deprived of his life, liberty or property, but by due process of law." In the Constitutions of nearly all the states, and in the Constitution of the United States, are found provisions in relation to eminent domain. These provisions require that private property shall not be taken for public use without just compensation. But such constitutional guaranties, are but the affirmance of the same great doctrine of the common law for the protection of private property. "It is founded in natural equity and is laid down by jurists as a principle of universal law. Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortunes of every citizen." Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Chicago B. & Q. R. Co. v. Chicago, 166 U.S....