Montgomery v. Alabama Power Co.

• Decision Date: 19 February 1948
• Docket Number: 6 Div. 611.
• Citation: 34 So.2d 573,250 Ala. 441
• Parties: MONTGOMERY et al. v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

34 So.2d 573

250 Ala. 441

MONTGOMERY et al. v. ALABAMA POWER CO.

6 Div. 611.

Supreme Court of Alabama

February 19, 1948

Rehearing Denied April 15, 1948.

Jones Dominick & McEachin and Liston C. Bell, all of Tuscaloosa, for appellants.

McQueen & McQueen, of Tuscaloosa, and Martin Turner & McWhorter and Alvin W. Vogtle, Jr., all of Birmingham, for appellee.

STAKELY Justice.

Liston R. Montgomery, Lester Montgomery, Edward Montgomery, Cecil Montgomery and Mrs. C. C. Hollingsworth brought a suit against the Alabama Power Company for damages for trespass upon certain lands described in the complaint and located in Tuscaloosa County Alabama. The defendant filed a motion to transfer the cause to the equity side of the docket and alleged in substance matters which it considered sufficient to present an equitable question for decision which should or would dispose of the cause and which could not be asserted on the law side of the court. For reasons which will hereinafter appear, we think it unnecessary to make any further statement as to the facts set up in this motion. Demurrers were filed to the motion which the court overruled. An order was then entered transferring the cause to the equity side of the docket.

In the equity court the Alabama Power Company filed what it terms a petition, but which we regard as a bill of complaint. Carey v. Hart, 208 Ala. 316, 94 So. 298. The so-called petition alleges in substance the following: On to-wit March 5, 1946, acting in good faith and believing that Mrs. C. C. Hollingsworth was the sole owner of the lands in question, petitioner acquired from her and her husband for a valuable consideration a deed duly executed by them and delivered to it, giving to it the right to construct, operate and maintain its lines of poles and towers and appliances necessary in connections therewith for the transmission of electric power with the right to string thereon electric power and telephone lines with all the rights and privileges necessary for the full enjoyment thereof, including the right of ingress and egress and the right to cut and keep clear all trees; the deed was duly recorded and a copy is attached to the petition and made a part thereof; after the deed was delivered to petitioner, it began construction of a rural electric line in conformity with the provisions of the deed; the line had been partially constructed when it discovered that Mrs. Hollingsworth was the owner of only a dower interest in the lands; petitioner had entered upon no lands other than those described in the deed; Mrs. Hollingsworth is not entitled to compensation or damages; petitioner is a power and electric company and by its charter has the right to manufacture, sell and supply electric energy to the public and the right of way is sought to be condemned for its transmission lines for the foregoing purposes and that this includes the right to clear and remove timber and other growth thereon.

The petition prays in substance for an order condemning a right of way across the lands upon payment to Liston R. Montgomery, Lester Montgomery, Edward Montgomery and Cecil Montgomery a just compensation for their interest in the land, no compensation to be paid to Mrs. C. C. Hollingsworth. The petition concludes with a general prayer for relief.

At the outset it must be observed that the court's ruling on the motion to transfer the cause from the law side to the equity side of the court cannot be reviewed on this appeal. Under § 154, Title 13, Code of 1940, when an appeal is taken from the final judgment or decree in the cause error may be assigned on the judgment or order of the court transferring the cause by the party aggrieved thereby. The appeal here, however, is not an appeal from a final judgment or decree but an appeal from a ruling on demurrer to the bill of complaint. At the present stage of the proceedings the proper method of review and the only method of review is by mandamus. Cornelius v. Moore, 208 Ala. 237, 94 So. 57; Aust v. Sumter Farm & Stock Co., 209 Ala. 669, 96 So. 872; Jones v. Wright et al., 220 Ala. 406, 125 So. 645; Employers Ins. Co. v. Brock, 233 Ala. 551, 172 So. 671.

It is very earnestly insisted by the appellants that under § 235 of the Constitution of Alabama the power to condemn lands is vested exclusively in the probate court as set forth in the statutes comprising Chapter 1, Title 19, Code of 1940. Accordingly, they insist that the remedy in the present situation is in the probate court and not in a court of equity. We think, however, that the contention overlooks a line of authority which has long been established in this state. In the case of Patterson et al. v. Atlantic Coast Line R. Co., 204 Ala. 453, 86 So. 20, in connection with a bill in equity this court, speaking through Anderson, C. J., said:

'It is a well-recognized principle that in order to subject the property of another for public use under...