Mobile & Gulf R. Co. v. Crocker

• Decision Date: 20 July 1984
• Citation: 455 So.2d 829
• Parties: MOBILE & GULF RAILROAD COMPANY v. Melba A. CROCKER, etc., et al. 83-344.
• Court: Alabama Supreme Court

Page 829

455 So.2d 829

MOBILE & GULF RAILROAD COMPANY v. Melba A. CROCKER, etc., et al.

83-344.

Supreme Court of Alabama.

July 20, 1984.

Walter Henley and Jerry Shirley of Henley, Whitehurst & Shirley, Northport, for appellant.

Robert F. Prince of Prince & McGuire, Tuscaloosa, for appellees.

MADDOX, Justice.

The issue on this appeal is: Does a state court have subject matter jurisdiction of an abandonment of a railroad right-of-way, or is the question of abandonment pre-empted by the Interstate Commerce Act under 49 U.S.C. § 10501 et seq.

Appellant Mobile and Gulf Railroad is owned by Brown Wood Preserving Company, which purchased the railroad from J. Graham Brown Foundation, Louisville, Kentucky, in 1980. The railroad owns twelve (12) miles of track, all of which is located in Tuscaloosa County, Alabama. The railroad traverses the Crockers' (appellees') property near Buhl. In 1926, the railroad acquired an easement across the property of the Crockers through a condemnation proceeding in Tuscaloosa County Probate Court. On February 28, 1971, the railroad granted and conveyed by warranty deed to Boyce Crocker and his heirs and assigns the "full and exclusive right to cultivate, rent, pasture, occupy, and otherwise use in any manner not inconsistent with the rights required by the appellant in the right-of-way."

In 1979, appellant ceased all operation of trains across the right-of-way in dispute. At that time, the Tuscaloosa County Engineering Department paved over the section of appellants' track which crossed the old Columbus Highway near the Crockers' property. Furthermore, on March 10, 1980, an agent and employee of the railroad, Ray Bobo, told the Crockers that the easement was "not going to be used as a railroad anymore."

In reliance on this statement by the vice-president of the railroad, the Crockers claim, they expended approximately $1,000 to keep the right-of-way clear on this strip of land so that their cattle could graze on the property. The Crockers also erected fences and planted a garden on the right-of-way. No objections were made at that time by the railroad to either the planting of the garden or the construction of the fences.

The Crockers filed a petition for declaratory relief with the Tuscaloosa County Circuit Court requesting that the court declare that the railroad's right-of-way had been abandoned. The railroad filed its answer and counterclaim and requested a preliminary injunction ordering the removal of the fences placed across the railroad tracks. The railroad also asked the court to hold that the right-of-way had not been abandoned. The railroad later added claims for trespass and interference with a business contract to its counterclaim. The railroad also filed a motion to dismiss the Crockers' complaint on the ground that the court lacked subject matter jurisdiction. The trial court denied the motion and the railroad filed a request with this Court, asking permission to appeal, pursuant to Rule 5, Ala.R.App.P. This Court granted the railroad permission to appeal from the interlocutory order entered by the trial court.

We first address a procedural question concerning our scope of review. The Crockers contend that our review should be limited to only that evidence which was submitted to the trial judge at the time the railroad filed its motion to dismiss. The railroad contends that if there is an absence of subject matter jurisdiction, the lower court had no power to act, and that "jurisdiction over the subject matter cannot be created by waiver or consent."

The procedural context in which this dispute arises is as follows: The initial complaint was filed on October 6, 1982, and the railroad filed an answer and counterclaim on October 15, 1982. On February 4, 1983, the railroad filed a motion for summary judgment and attached to the motion several affidavits to the effect that the railroad was a duly licensed common carrier under and pursuant to the regulations of the Interstate Commerce Commission, and that no proceedings had been initiated to abandon the railroad pursuant to federal law. The trial court denied the motion for summary judgment on March 14, 1983. The railroad filed an amendment to its counterclaim on August 3, 1983, and on September 6, 1983, filed its motion to dismiss, which was denied on October 27, 1983. The railroad did not, within the time specified in Rule 5, Ala.R.App.P., request permission to appeal from the lower court's order denying its motion for summary judgment. As already stated, this Court granted the railroad's request for permission to appeal the trial court's denial of its motion to dismiss. The entire record before the trial court was designated and transmitted to us for consideration on this appeal.

The Crockers claim that on this review we should not consider any of the documents which were filed in connection with the railroad's motion for summary judgment. We cannot agree with them. The question of jurisdiction is always fundamental. As this Court held in Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967):

"The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent. Rinehart, etc. v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503. Absence of jurisdiction over the subject matter ends all inquiry, and the matter may be raised on appeal."

The railroad, of course, could have made its defense of lack of subject matter jurisdiction before it filed its answer and counterclaim. The precise question is whether the trial court and this Court can consider the documents filed in connection with the railroad's motion for summary judgment in determining the jurisdictional question. We hold that both the trial court and this Court can consider matters not submitted contemporaneously with the motion to dismiss, but which are included in the record. Rule 12(h)(3), Ala.R.Civ.P., provides that "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

Facially, the Crockers' complaint appears sufficient to show that the trial court had jurisdiction, but we are not limited on this appeal to the allegations of the complaint. Matters outside the pleadings show that there was a legal question whether the trial court had subject matter jurisdiction. Consequently, we will review that question based upon what is before us in the record.

We now consider the question whether the trial court had the power to determine the abandonment issue.

There is an uncontradicted affidavit in the record which indicates that the railroad was a duly licensed carrier under and pursuant to the regulations of the Interstate Commerce Commission, but it is also undisputed that the tracks were not being used as an active railway, but were being used by the railroad to store railway cars. The Interstate Commerce Commission had not authorized the abandonment of the railroad right-of-way.

In view of these facts, we are of the opinion that the abandonment of a railroad right-of-way is within the exclusive authority of the Interstate Commerce Commission, pursuant to the provisions of the Interstate Commerce Act.

This act is among the most pervasive and comprehensive of federal regulatory schemes and under this act the Interstate Commerce Commission is given exclusive and plenary authority in regard to railroad abandonments. Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981).

In Kalo Brick, the Court held:

"The Commission's power to regulate abandonments by rail carriers stems from the Transportation Act of 1920, ch. 91, 41 Stat. 477-478, which added to the Interstate Commerce Act a new § 1(18), recodified at 49 U.S.C. § 10903(a) (1976 ed., Supp.III). That section stated in pertinent part:

" '[N]o carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.'

This section, we have said, must be 'construed to...