McCulley v. Cunningham

• Decision Date: 02 November 1892
• Parties: MCCULLEY v. CUNNINGHAM ET AL.
• Court: Alabama Supreme Court

11 So. 694

96 Ala. 583

MCCULLEY v. CUNNINGHAM ET AL.

Supreme Court of Alabama

November 2, 1892

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

Petition in ad quod damnum proceedings by W. F. McCulley against G. L. Cunningham and others to establish the right to construct a milldam. Judgment for petitioner. From an order of the circuit court reversing this judgment, petitioner appeals. Judgment of the circuit court reversed, and the cause remanded, with directions to dismiss the appeal.

This is an ad quod damnum proceeding to establish the right to construct a milldam, and was commenced by W. F. McCully the appellant, filing a petition with the judge of probate of Calhoun county on July 2, 1891. Notwithstanding the imperfections of said petition, which are pointed out in the opinion of this court, the probate court took jurisdiction of the matter, and, after the award by the jury, duly appointed by the court, rendered judgment accordingly, granting the prayer of the petitioner. The appellees, under section 3206 Code Ala. 1886, took an appeal to the circuit court of Calhoun county. In the said court the appellees moved the court to quash and vacate the order of the probate court allowing the erection of the said dam in accordance with the petition of said McCully. Thereupon said McCully moved to strike from the docket and files the said motion made by the appellees. The court overruled McCully's said motion to strike the motion of the appellees from the file, and granted the motion to quash, and rendered judgment dismissing the said petition, and vacating and holding for naught the judgment rendered by the court. It is from this judgment that the present appeal is taken, and the rulings of the lower court upon the motions are assigned as error.

Matthews & Whiteside, for appellant.

Bishop & Whitson, for appellees.

THORINGTON J.

The jurisdiction conferred by sections 3184 ^[1]-3206 of the Code on the judge of probate to authorize the erection of dams for water gristmills, sawmills, gins, or factories is special and limited, and can be supported only when the record shows affirmatively every fact necessary to uphold the jurisdiction. The right conferred by the statute is the exercise of the power of eminent domain, and involves the taking of private property, as much as if lands were taken. Under the limitations of the constitution, no such right can be exercised unless the mill or other structure specified in the statute is to be operated for the public, under regulations established by law; and section 3184 of the Code in express terms limits the exercise of the right to mills, gins, and factories to be so operated. The petition filed by appellant with the probate judge fails to show that the mill the petitioner proposed to erect is to be operated for the public, or to set forth any fact from which that inference would arise; such, for instance, as that it was a mill which would grind for toll. The statement in the petition, furthermore, is that the petitioner proposed, besides the mill, to "operate other machinery," without stating that it was machinery pertaining to or constituting part of a gristmill, sawmill, gin, or factory, which are the only structures authorized by the statute. It is clear, therefore, that the petition fails to set forth the necessary facts to authorize the judge of probate to assume jurisdiction, and the entire proceedings before him were void. Bottoms v. Brewer, 54 Ala. 288.

An appeal was taken from the proceeding before the probate judge by the contestants to the circuit court, where the petition was not amended, but remained as it was in the proceeding before the probate judge. In the circuit court...