Montgomery County v. Montgomery Traction Co.

• Decision Date: 31 May 1904
• Citation: 140 Ala. 458,37 So. 208
• Parties: MONTGOMERY COUNTY ET AL. v. MONTGOMERY TRACTION CO.
• Court: Alabama Supreme Court

37 So. 208

140 Ala. 458

MONTGOMERY COUNTY ET AL. v. MONTGOMERY TRACTION CO.

Supreme Court of Alabama

May 31, 1904

Appeal from Chancery Court, Montgomery County; W. L. Parks Chancellor.

Suit by the Montgomery Traction Company against the county of Montgomery and others. From a judgment for plaintiff defendants appeal. Appeal dismissed.

J. G Finley, C. P. Jones, and Fred. S. Ball, for appellants.

Graham & Steiner, for appellee.

McCLELLAN C.J.

This bill was exhibited by the Montgomery Traction Company against the county of Montgomery, the board of revenue of said county, and the members of said board individually. Its object was to enjoin said county, its officers and agents from interfering in any way with complainant's street railway track on and extending along "South Perry street from the southerly limits of the city of Montgomery south to Felder street." To this end, it is averred in the bill that the board of revenue of said county in November, 1902, granted complainant the right to construct and operate such railway between the city of Montgomery and Felder street, along South Perry street; that the same was soon after constructed, and has since been operated by complainant; that on August 10, 1903, the board of revenue, claiming that complainant had not complied with the conditions of said grant in the manner of constructing said railway, and in respect of certain betterments, and the maintenance of the roadway over which the railway was constructed, in terms revoked and rescinded its grant to complainant, and ordered complainant to take up and remove its track from said roadway, under penalty of having the same removed by said board, and that said board was about to proceed to remove said track, to the irreparable damage, etc., of complainant. The preliminary injunction was decreed and issued in accordance with the prayer of the bill. The respondents answered the bill, and thereupon moved to dissolve the injunction on the grounds (1) that there is no equity in the bill; and (2) upon the denials of the answer. This motion was overruled, and from the decree in that behalf the present appeal is prosecuted.

By an act approved February 23, 1903 (Loc. Acts 1903, p. 53, No 46), to take effect on October 1, 1903, the locus in quo was taken out of the jurisdiction and control of the board of revenue of Montgomery county, and incorporated in the territorial limits of the city of Montgomery; ...