Mobile & M. Ry. Co. v. Alabama M. Ry. Co.

• Decision Date: 29 July 1897
• Citation: 23 So. 57,116 Ala. 51
• Court: Alabama Supreme Court
• Parties: MOBILE & M. RY. CO. ET AL. v. ALABAMA M. RY. CO. [1]

23 So. 57

116 Ala. 51

MOBILE & M. RY. CO. ET AL. v. ALABAMA M. RY. CO. ^[1]

Supreme Court of Alabama

July 29, 1897

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Suit by the Mobile & Montgomery Railway Company and another against the Alabama Midland Railway Company. Bill dismissed. Complainants appeal. Reversed.

The allegations of the bill and the facts of the case are set forth at length in the opinion.

The prayer of the bill was "that a preliminary injunction issue enjoining and restraining said Midland Railway Company its officers, agents, and servants, from occupying or keeping possession of any part of what was formerly known as 'River Street,' in the city of Montgomery, which lays north of the center of said street and adjacent to the property of complainants, and more particularly described in paragraph 3 of this bill; and also from operating cars on any tracks thereon, or building any structures thereon, or interfering with or changing the grade thereof, or otherwise obstructing the use of the same; and also from removing or in any wise using the track already laid in said parts of said street north of the center thereof; and that on final hearing said injunction be made perpetual; and complainants, if in any wise they have mistaken their relief, pray for all such other and further or different relief as they may be entitled to in equity and good conscience."

Upon the submission of the cause, on the motion to dissolve the injunction, a decree was rendered dissolving the injunction and ordering the complainants' bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error.

Thos G. Jones, for appellants.

A. A Wiley and Chas. Wilkinson, for appellee.

HARALSON J.

The principles involved in this litigation have been the subject of repeated consideration and adjudication in this court. We may, for the purposes in hand, so far as is deemed necessary summarize the result of these decisions,-in harmony with decisions elsewhere, and with the text writers on the subject.

The rights of property in the public streets of a city, as has been held, are of two classes. The one when there has been, by the owner of the land, a simple dedication of a part of the land as a street or public highway, without any conveyance of title, in which case, neither the government, the municipality, nor the public acquires any other interest than an easement, the ultimate fee remaining unaffected by the dedication; and the other, where dedication has been made and the fee conveyed by the owner to the municipality. In Perry v. Railroad Co., 55 Ala. 424, referring to these two classes, the court said: "But, in each of these classes of cases, if the sovereign power grant the right to construct a railroad track and run trains on or over such public street, this is a legitimate exercise of the police power inherent in the state, and the changed use of the street ceases to be a public nuisance of which any one can complain. See an able discussion of this subject in Barney v. City of Keokuk, 94 U.S. 324. When, however, under the first named of the above classes, the ultimate fee remains in the land proprietor, the municipal government cannot confer on a railroad corporation, the right to convert a public street into a roadbed for its own use, unless the charter of such municipality, or some other legislative authority, confer on it the power to do so." State v. Mayor of Mobile, 5 Port. (Ala.) 279.

In the case referred to in 94 U.S., it was held, that there is no substantial difference between these two classes of streets,-in which the legal title is in a private individual, and those in which it is in the public,-as to the rights of the public therein.

Again it was said in Perry's Case, supra: "When a street [of the first class named] thus dedicated, is improperly obstructed, or perverted to a use other than that for which it was dedicated, the owner of the fee has left in him sufficient title or right to prevent or redress the wrong; and for this purpose, the general rule is, that the owner of the attingent property is the owner of the ultimate fee, extending to the center of the street. See Cincinnati v. White, 6 Pet. 431; Dill. Mun. Corp. §§ 493, 495, 496, 500, 524." The complainant in Perry's Case, was allowed to maintain the bill, on its averments, for the reason that no express provision was found in the charter of Mobile, authorizing the city authorities to grant, as they had done, to the railroad company, the right to lay its track on the streets of the city, a power which could not be exercised, unless conferred either expressly or impliedly by the legislature. 3 Elliott, R. R. §§ 1076-1079.

In Railway Co. v. Witherow, 82 Ala. 190, 3 So. 23, the complainant sought to enjoin and restrain the defendant from the further construction of an embankment in one of the streets of the town of Leeds, on the ground that the embankment would be a public nuisance, and would greatly injure and depreciate the value of two town lots owned by complainant, who was an adjacent owner, claiming a right to the center of the street. The bill alleged that the defendant had never paid or offered to pay complainant, any compensation for the damages to her said property by the construction of said road, and there had never been any agreement between them fixing the compensation to be paid her therefor. A motion to dissolve the injunction that had been granted, for want of equity, and on the denials of the answer, was overruled.

This court held, that the bill on its face contained equity. "Taking these facts to be true [as the court said], the authorities are numerous in support of the bill. Unless authorized by some law, in consonance with the provisions of the constitution, such use of the public streets of an incorporated town presumptively would be unauthorized by the original dedication, and would prima facie be a special damage to the complainant, which could be restrained by injunction at her instance, she being an adjacent property owner." In that case, the provision of section 7 of article 14 of the constitution, prohibiting the taking of private property by municipal and other corporations, without making just compensation for the property taken, injured or destroyed,-such compensation to be paid before such taking, injury or destruction,-was duly considered. This court overruled the decree of the court below, and rendered a decree providing for a dissolution of the injunction upon the defendant furnishing security deemed adequate for the damage it might do, in the erection of said embankment. The court said: "The proceeding is one in restraint of a public work of great utility-the construction of a railroad-thus presenting a case in which injunctions are granted with great caution. Delay in the construction of the work may operate very oppressively against the defendant, as well as result in great injury to the public. Courts very often, in such cases, balance the question of damages to the one party, and that of benefit to the other, resulting from the maintenance of the injunction, on the one hand, and its dissolution on the other, and refuse to take any action which will cause great injury to one party, and probably be of serious detriment at the same time to the public, without corresponding advantages to the other party." Citing High, Inj. (2d Ed.) § 598; East & West R. Co. v. East Tennessee, V. & G. R. Co., 75 Ala. 275; Torrey v. Railroad Co., 18 N. J. Eq. 293. The court added, that the case did not present the facts in such shape as to require them to act on that rule, thereby intimating, that if the facts had so appeared, there would have been no hesitation in its application, as was done in the 75 Ala. case cited. It is to be observed, that though the facts stated in the bill, gave it equity, as was held, and authorized the relief sought, but were not sufficient for the absolute application of the rule just quoted in respect to the dissolution of injunctions in such cases, yet, out of abundant caution, lest a great railroad enterprise might be delayed in its construction, operating oppressively against the company, as well as in great injury to the public, the court in that case rendered a decree denying the relief as prayed for, and dissolving the injunction on terms of easy compliance by the defendant.

The case of Western Railway of Alabama v. Alabama G. T. R Co., 96 Ala. 272, 11 So. 483, is another case of the character of the one before us, in which the court, in the exercise of a sound discretion, balancing the relative inconvenience and injury likely to result from granting or withholding the writ, dissolved the injunction. The bill, as stated, made, prima facie, a clear case for injunctive relief. The appellee company had entered upon the land of the other company, without its consent and without making compensation therefor, when, as alleged, it was not necessary for said company to take complainant company's lands, which were necessary, as was averred, for the operation of its own road. It was further averred that irreparable damage to the complainant would result, unless the injunction should be granted. The lower court dissolved the temporary injunction, and this court, after elaborate consideration, affirmed the decree. This was done, on the ground, that it appeared the construction of defendant's railway would not interfere with the tracks of complainant, nor with any track it had the right to construct; that the damage to complainant would be nominal; that the defendant was not shown to be insolvent, and that to stop the work under the circumstances would probably result in grievous disaster to its enterprise, which was of a public nature, without any advantages to...