Roman v. Long Distance Telephone & Telegraph Co.

• Decision Date: 17 May 1906
• Citation: 41 So. 292,147 Ala. 389
• Parties: ROMAN v. LONG DISTANCE TELEPHONE & TELEGRAPH CO.
• Court: Alabama Supreme Court

41 So. 292

147 Ala. 389

ROMAN v. LONG DISTANCE TELEPHONE & TELEGRAPH CO.

Supreme Court of Alabama

May 17, 1906

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

"To be officially reported."

Suit by S. Roman, as trustee, etc., against the Long Distance Telephone & Telegraph Company. From a decree sustaining a motion to dismiss the bill and dissolving a temporary injunction, complainant appeals. Affirmed.

The allegations made by the bill in this case were as follows (1) Residences and ages of the parties; (2) that the complainant, a trustee for Lehman Bros. and Ignatius Pollak is the owner of and in possession of the following described land situated in Cullman county, Ala. (here follows a description of the land), and that said lands are very valuable; (3) defendant is engaged in the construction of a telephone line on and across the lands of complainant above described without offering to pay complainant any just compensation therefor, and without having instituted any judicial proceedings for the purpose of condemning said lands, and that its servants and agents were digging holes erecting poles, etc., on said land. And it prays for an injunction restraining the construction. The defendant filed a sworn answer, denying the ownership or possession of the land in said Roman as trustee, and setting up ownership in other various parties. It sets up the requirement by defendant of the right to construct and maintain the telephone line where it is being constructed and maintained by virtue of permission from the owners of the land. The defendant further moved for a dismissal of the bill and a dissolution of the injunction for want of equity in bill, and because the sworn denials to the answer go to and controvert all the material averments of the bill. Defendant also demurred to the bill because it does not sufficiently appear whether said Roman filed the bill in his individual capacity or as a trustee for Lehman Bros. and Ignatius Pollak, and because the bill is filed by Roman in his individual right and all the rights shown in the complainant to the lands involved is in his capacity as trustee, and because said bill does not show the nature of the trust held by said Roman over said lands, whether it be a naked trust or an active trust and because of a nonjoinder of parties plaintiff, in that Lehman Bros. and Ignatius Pollak are shown to be the beneficial owners of said land and are not made parties to the suit, and because the bill does not show that the land has been damaged or will be damaged by the construction of the telephone line mentioned in said bill. The defendant demurred to the verification of the bill because said verification does not show that the affiant had any knowledge of the facts stated in the bill, and it does not show any sufficient reason why it was not verified by the complainant. The verification of the bill was made by D. A. Fuller, who says that he is a duly authorized agent of the complainant and has authority to make the affidavit; that the complainant resides at Montgomery and is not present to make the affidavit, and will not have...