Memphis & C.R. Co. v. Birmingham, S. & T.R. Ry. Co.

• Decision Date: 07 November 1892
• Citation: 11 So. 642,96 Ala. 571
• Parties: MEMPHIS & C. R. CO. v. BIRMINGHAM, S. & T. R. RY. CO.
• Court: Alabama Supreme Court

11 So. 642

96 Ala. 571

MEMPHIS & C. R. CO. v. BIRMINGHAM, S. & T. R. RY. CO.

Supreme Court of Alabama

November 7, 1892

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

Petition by the Birmingham, Sheffield & Tennessee River Railway Company, under Code, § 1582, for the appointment of three arbitrators to determine the terms and conditions upon which said company should be allowed to cross the track of the Memphis & Charleston Railroad Company. From an order of the probate court refusing to dismiss such petition, defendant carried the case by certiorari to the circuit court. From an order of the circuit court dismissing the certiorari, defendant appeals. Reversed.

Humes, Sheffey & Speake, for appellant.

Simpson & Jones, for appellee.

THORINGTON J.

The sole question raised by this appeal involves the constitutionality of section 1582 of the Code of 1886. This section prescribes the mode by which one railroad company may acquire the right to cross or intersect the road of another and appellant insists the statute is unconstitutional for the following reasons: (1) It fails to require notice of the filing of the petition, and hence fails to provide an opportunity to controvert its allegations; (2) it fails to provide for an appeal or a trial by jury; (3) it does not provide for the assessment or payment of just compensation to the injured party.

While the authorities are not altogether uniform or harmonious in regard to the necessity of notice of the initiatory steps in proceedings of this class, it cannot be doubted that under constitutional provisions, such as exist in this state, no statute authorizing the taking of property for a public use by corporations or individuals invested with the exercise of the right of eminent domain is a valid enactment, which fails to secure to the owner of property so taken the right of an appeal from any preliminary assessment of damages by viewers or otherwise, by which a trial by jury may be had according to the course of common law, or which fails to provide that just compensation shall first be made to the party injured and in considering the question we shall confine the inquiry to the last two grounds urged by appellant against the validity of the act. The constitutional provisions by which the question under consideration is to be tested are as follows: Article 1, § 24: "That the exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as individuals. But private property shall not be taken or applied for public use, unless just compensation be first made therefor: *** provided, however, that the general assembly may, by law, secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner," etc. Article 14, § 7: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction. The general assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals, made by viewers or otherwise; and the amount of such damages, in all cases of appeal, shall, on demand of either party, be determined by a jury according to law." Article 14, § 21: "All railroads and canals shall be public highways. *** Every railroad company shall have the right. with its road, to intersect, connect with, or cross any other railroad, and shall receive and transport, each, the other's freight, passengers, and cars, loaded or empty, without delay or discrimination."

In the absence of constitutional restraints, the power of the state to take private property for the public use reaches every species of property within its jurisdiction, even when acquired by grant from the state. It is a power inhering in sovereignty, and it has been declared that it is impliedly reserved in every grant, and that the franchise of a corporation is not exempt. It may be taken in whole or in part, and, with the other property of the corporation, devoted to other or similar public uses. And in this state it is extended by express constitutional provisions to the property and franchises of corporations, "the same as individuals." Article 1, § 24; Anniston & C. R. Co. v. Jacksonville, G. & A. R. Co., 82 Ala. 297, 2 South. Rep. 710. The only restrictions as to the manner of the exercise of this power by the state are to be found in the constitution, "for nothing of less authority than the organic and fundamental law which lays out the very frame of government could impose them." 6 Amer. & Eng. Enc. Law, pp. 512, 521. It is clear, from the provisions of the constitution of this state, quoted above, that two restrictions are in express terms imposed by the organic law upon the right of the state to invest individuals and corporations with the exercise of this power, viz.: That just compensation shall first be made to the owner in all cases; and that in cases where private property is taken, injured, or destroyed by the construction or enlargement of the works, highways, or improvements, or individuals, municipal or other corporations invested with the privilege of taking private property for public use, the right of appeal from the preliminary assessment of damages made by viewers or otherwise shall be secured, upon this appeal, on the demand of either party, and the damages shall be determined by a jury according to law. In Smith v. Inge, 80 Ala. 283, it is said: "The state itself cannot, in the exercise of the right of eminent domain, take private property for public uses without a regular judgment on condemnation in a proper judicial proceeding, first making payment of just compensation to the owner."

If, therefore, the crossing or intersecting of the road of one railway company by the road of another is taking, injuring, or destroying private property, by the construction or enlargement of the works, highways, or improvements of such company, within the meaning of the constitution, then the constitutional restrictions or limitations, to which we have referred, are applicable; and the exercise of such right can only be sustained when it is claimed under a valid legislative enactment by which the rights contemplated by these constitutional restrictions are secured to the owner of the property so taken, injured, or destroyed. There is abundant authority in the text-books and adjudicated cases for the proposition that the crossing or intersecting of the road of one railway company by that of another is the taking of property, within the meaning of constitutional provisions requiring compensation to be made. That to constitute a taking of property it is not necessary there should have been an actual disseisin of the owner, but that it is a "taking" to invade his property by superinduced additions of water, sand, earth, or other material, or by having any artificial structure placed upon it so as effectually to destroy or impair its usefulness. 6 Amer. & Eng. Enc. Law, p. 542. And in the case of Pumpelly v. Canal Co., 13 Wall. 166, it is said that a serious interruption to the common and necessary use of property may amount to a taking, within the meaning of constitutional provisions, and entitle the owner to compensation. In the case of Chicago & A. R. Co. v. Springfield & N.W. R. Co., 67 Ill. 147, it was held, in a case of the construction of one railroad across the track of another, that the company whose track is crossed is entitled to recover, not only just compensation for the land taken, but also for such incidental loss, inconvenience, and damage as might reasonably be expected to result from the construction and use of the crossing in a legal and proper manner. The same principle is recognized in the following cases: Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 10 Amer. & Eng. R. Cas. 129; Lake Shore & M.S. R. Co. v. Cincinnati, S. & C. R. Co., 30 Ohio St. 604.

So, also, under an act which allowed damages when lands were "injuriously affected," it was held that the test applied to determine the proper meaning of the words "injuriously affected," as giving a right to compensation, was whether the act done in carrying out the works in question was an act which would have given a right of action if the works had not been authorized by the statute. In other words, if the act affecting the land had been done by an individual, he would be liable for damages. Delaplaine v. Railroad Co., 42 Wis. 214. And in McCarthy v. Board of Works, L.R. 8 C.P. 209, it is said: "The act, therefore, injuriously affecting, must be that which would be wrongful but for the statute. It is enough *** that it might be prevented by injunction." The question can scarcely be regarded as an open one in this court. While there is no case, so far as we have discovered, which in express terms decides that the crossing or intersecting of one railroad by another is the taking of property, within the meaning of the constitution, there are cases in which the principle is recognized. In the case of Mobile & G. R. Co. v. Alabama Mid land Ry. Co., 87 Ala., at page 508, 6 South. Rep., at page 406, it

is said: "The statutes above referred to confer all the authority to take private property, whether of...