Odum v. Rutledge & J.R. Co.

• Decision Date: 11 November 1891
• Citation: 10 So. 222,94 Ala. 488
• Court: Alabama Supreme Court
• Parties: ODUM v. RUTLEDGE & J. R. CO., (TWO CASES.)

10 So. 222

94 Ala. 488

ODUM v. RUTLEDGE & J. R. CO., (TWO CASES.)

Supreme Court of Alabama

November 11, 1891

Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge.

Appeal from probate court, Crenshaw county; JOHN R. TYSON, Special Judge.

This comprises two suits brought by the Rutledge & Julian Railroad Company against B. P. Odum for the condemnation of land for a right of way, and the recovery of a penalty. There was judgment for plaintiff in both cases, and defendant appeals.

Gamble, Bricken & Gamble, for appellant.

J H. Parks and M. W. Rushton, for appellee.

COLEMAN J.

These two cases were submitted as one case, and will be considered together. The Rutledge & Julian Railroad Company and B. P Odum agreed to submit to arbitration a matter of controversy in regard to a right of way over the lands of the latter. The articles of agreement, submitting the matter to arbitration provided that, if "either party shall fail to keep, observe, and perform the decision and award, he or it shall pay to the other party two hundred and fifty dollars as liquidated damages." The railroad company (appellee) claimed that Odum forfeited the penalty, and instituted condemnation proceedings in the probate court, under the statute, to condemn the land to the right of way. From the trial and order of condemnation the appeal is taken to this court. The railroad corporation then sued upon the articles of submission, and recovered the amount stipulated in the agreement. From the judgment rendered on this trial the appeal is taken from the circuit court.

Article 1, § 24, of the constitution, in regard to the exercise of the right of eminent domain, among other provisions declares as follows: "Nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: provided, however, that the general assembly may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved," etc. Article 2, tit. 2, pt. 3, of the Code, commencing at section 3207, prescribes a system of condemnation proceedings in the probate court, when any corporation, person, or association of persons proposes to take lands, or to acquire an interest or easement therein, for any uses for which private property may be taken, to have the same condemned to such uses. Section 3216 of the Code provides that the order of condemnation upon the payment of the sum ascertained shall vest in the applicant the easement proposed to be acquired for the uses and purposes stated in the application, but for no other uses and purposes. Construing the written agreement between B. A. Walker, president of the corporation railroad, and B P. Odum, the owner of the land, (in which the matter in dispute is stated to be "concerning a right of way" over the lands of the said Odum, in connection with the constitutional and statutory provisions,) it is clear that no greater interest in the land was to be appropriated to the railroad than a mere easement. In fact the agreement provides "the determination of the location and the damage for the right of way over said lands" should be left to the named arbitrators for decision. The fee of the land, and ownership of improvements thereon, and everything not incompatible with the use intended as a right of way, remained in the owner. Simply to acquire the right to use the land to the same extent, and no more, as if the right of way had been secured by compulsory proceedings under the statute, was the purpose of the arbitration. Alabama & F. R. Co. v. Burkett, 42 Ala. 84; Lance's Appeal, 55 Pa. St. 16, 93 Amer. Dec. 722, and note, 729.

The railroad had the right to remove all buildings or constructions located upon its right of way, or which interfered with its use; but the property interest in such building or improvement remained in the owner, subject to the right of the company to have them removed. The award rendered by the arbitrators seems to be in accord with the matters submitted to them. It refers to the agreement of submission, assesses "the damages at five hundred dollars for the right of way so taken or to be taken according to the survey." It appears from the evidence that the line for a right of way at that time had been surveyed, and the damages assessed were for the right of way "according to the survey." It is not void for uncertainty. Id certum est quod reddi certum. We do not doubt that Odum had the right to the buildings and the fences, and his claim to resume them ought not to have been refused or interfered with by the railroad company.

We are not considering the effect of the deed signed by Odum and wife and tendered to the company, but...