Mobile & B.R. Co. v. Louisville & N.R. Co.

• Decision Date: 22 April 1915
• Docket Number: 827
• Citation: 68 So. 905,192 Ala. 136
• Parties: MOBILE & B.R. CO. v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

68 So. 905

192 Ala. 136

MOBILE & B.R. CO. v. LOUISVILLE & N.R. CO.

No. 827

Supreme Court of Alabama

April 22, 1915

On Rehearing, June 3, 1915

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Proceedings by the Mobile & Birmingham Railroad Company to condemn a right of way and crossing, over the tracks of the Louisville & Nashville Railroad Company. From a judgment denying the right of condemnation, petitioner appeals. Reversed rendered, and remanded.

Bestor & Young and T.M. Stevens, all of Mobile, for appellant.

Gregory L. & H.T. Smith, of Mobile (Joel W. Goldsby, of Mobile, of counsel), for appellee.

SOMERVILLE J.

Under the rules of procedure in eminent domain, as originally formulated in the Code of 1886 (sections 3209-3216), the granting of a petition for condemnation was a question exclusively for the trial judge, and the function of the jury was confined to the assessment of the damages to be paid to the owner. Montgomery So. Ry. Co. v. Sayre, 72 Ala 446; London v. Sample Lbr. Co., 91 Ala. 607, 8 So 281.

When an appeal was afterwards given to the circuit court from the judgment of the probate court, the appeal was limited to a trial de novo of the damages to be assessed; and an appeal from the preliminary order granting or refusing the petition went directly to the Supreme Court. Sections 1717-1720, Code 1896; B.R. & E. Co. v. Birmingham Trac. Co., 128 Ala. 110, 29 So. 187.

Under the provisions of the Code of 1907, §§ 3875, 3878, every appeal from the probate court is to the circuit court, or court of like jurisdiction. If the petition was granted, the appeal is from the final order of condemnation, and "the trial shall be de novo." Section 3875, supra. If the petition was denied, and the superior court on appeal--

"determines that the application should be granted, it shall proceed forthwith to have the damages and compensation assessed by a jury."

In the case of Huntsville v. Pulley, 65 So. 405, we held that the right of appeal to the circuit or other like court, in municipal assessment cases, required a trial by jury; and it was there said that a jury trial in such courts on appeal would always be intended, if not plainly inhibited. It was also said that a provision for a trial in such "court" might mean a trial by the judge alone, or by the judge and jury as in ordinary practice, according to the subject-matter, context, and general policy of the law.

Looking to the history, language, and policy of our eminent domain statutes, we can entertain no doubt but that the original functions of court and jury have not been changed, but are still preserved and distinguished under our present statutes, and that the petitioner's right to condemn is to be determined by the court without the aid of the jury; while the amount of damages to be assessed is a question exclusively for the jury. It follows that the trial court did not err in its determination of petitioner's right to condemn without the intervention of a jury.

Section 242 of the Constitution of 1901, repeating the language of section 21, art. 14, of the Constitution of 1875, provides that:

"Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad."

It has been held that the crossing of one railroad by another is a taking of its property, and that the constitutional provision above quoted is qualified by other constitutional provisions requiring the payment of just compensation before taking. M. & C. Ry. Co. v. Birmingham, etc., Co., 96 Ala. 571, 11 So. 642, 18 L.R.A. 166; Birmingham Tract. Co. v. Birmingham R. & E. Co., 119 Ala. 129, 24 So. 368.

Conceding its obligation to make just compensation for the exercise of the right to cross the defendant's road, the petitioner conceives that its right to cross is absolute and without restriction as to reasonable necessity for its own uses, or as to injurious consequences to the defendant in the use of its own road. The defendant insists, on the other hand, that the case is controlled by section 3867 of the Code, which provides that property already condemned or devoted to a public use shall not be re-condemned to another and different character of public use unless there is actual necessity therefor, and unless the original use will not be thereby materially interfered with. We think it is entirely clear that section 3867 has no application to railroad crossings, which are specially provided for by section 3885 of the Code, and the right to which is singled out and safeguarded against legislative inhibition by section 242 of the Constitution. This distinction between a taking merely for a crossing and a taking generally under section 3867 seems to have been assumed in the cases of M. & G. Ry. Co. v. Ala. Mid. Ry. Co., 87 Ala. 501, 508, 6 So. 404, and S. & N. Ala. Ry. Co. v. Highl. Ave. Ry., 119 Ala. 105, 113, 24 So. 114.

Nevertheless, this right of crossing is subject to those general regulations and restraints which have always inhered in the exercise of the right of eminent domain. As recently declared by this court: "An actual necessity, for public purposes, of the specific land or interest therein which is sought to be condemned, lies at the very root of every proceeding invoking the exercise of the power of eminent domain, for it is only upon the theory of public necessity that any private property, no matter how insignificant it may be, can be taken from its owner and, against his will, devoted to a public use." W.U.T. Co. v. S. & N.A.R. Co., 184 Ala. 66, 95, 62 So. 788, 796.

The right of one railroad to cross another is therefore dependent, in the first instance upon a reasonable necessity for such a crossing; and, where such a necessity is shown, the crossing sought must be so located and constructed as not to inflict any unnecessary injury upon the road to be crossed. State v. Dearing, 173 Mo. 492, 73 S.W. 485; West Jersey Ry. Co. v. A. City, etc., Ry. Co., 65 N.J.Eq. 613, 56 A. 890; Seattle, etc., R. Co. v. State, 7 Wash. 150, 34 P. 551, 22 L.R.A. 217, 38 Am.St.Rep. 866; 33 Cyc. 245.

But the statutes which give the right to cross--

"do not require that there shall be no injury whatever to the rights of the road crossed, or require the selection of the place and mode which will least injure the company crossed, without regard to the interests and necessities of the other company, which must also be considered and the question determined according to the circumstances of the particular case." Cyc. 246.

The right to cross, though given in general terms, is not confined to the main tracks of either road--

"but applies to the lateral and spur tracks and switches constituting a part of the system and necessary to enable the company properly to carry on its business." East St.L., etc., R. Co. v. East St.L. Union R. Co., 108 Ill. 265; K.C., etc., R. Co. v. La., etc., R. Co., 116 La. 178, 40 So. 627, 5 L.R.A. (N.S.) 512, 7 Ann.Cas. 831.

Nor does the making of one crossing, nor even of several, necessarily exhaust the general right to cross. The exigencies of commerce, the needs of a particular locality, and the welfare of the general public may all be important, if not decisive, factors in determining the propriety and necessity of additional crossings in the same vicinity. Elliott on Railroads, § 1124.

The evidence in this case shows that the tracks of the defendant railroad company, including its main line and a side track for storage purposes, run along Commerce street north and south on a general parallel with the west bank of the Mobile river, at a distance of about 150 feet from the water. Along this water front numerous wharves or piers receive and discharge the commerce of the sea for transshipment either seaward or landward, or for local consumption, and this includes, as estimated, about 80 per cent. of the foreign commerce of the port of Mobile. All of these piers lie between One-Mile creek on the north and the intersection of Lipscomb and Commerce streets on the south, and they are served chiefly by spur tracks of the Mobile & Ohio and the Southern or allied...