Southern Ry. Co. v. Albes

• Decision Date: 02 July 1907
• Citation: 153 Ala. 523,45 So. 234
• Parties: SOUTHERN RY. CO. ET AL. v. ALBES.
• Court: Alabama Supreme Court

45 So. 234

153 Ala. 523

SOUTHERN RY. CO. ET AL. v. ALBES.

Supreme Court of Alabama

July 2, 1907

Rehearing Denied Dec. 19, 1907.

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

Action by Charles Edward Albes against the Southern Railway Company and others to enjoin the vacation of a street, etc. From a decree overruling a motion to dismiss, and overruling demurrers to the bill, defendants appeal. Reversed and rendered.

The allegations of the bill are as follows:

(1) That orator is a citizen of Morgan county under the age of 21 years.

(2) That the city of Decatur is a municipal corporation authorized by its charter to sue and be sued under the name of the "Mayor and Council of the City of Decatur," and is invested with the power of eminent domain. The Southern Railway Company is a corporation organized under the laws of the state of Virginia, and under the law invested with the power of eminent domain. This section is amended by adding the following words: "Said Southern Railway Company is now operating a line of railway from the city of Chattanooga, in the state of Tennessee, to and through the city of Decatur, Alabama, and on to Memphis in the state of Tennessee."

(3) That orator is seised and possessed and the owner in fee of the following described lot or parcel of land, situated lying, and being within the corporate limits of the city of Decatur. (Here follows the description.) Said lot of land fronts on the right of way of the Southern Railway Company 259 feet, extending from La Fayette street on the north to Vine street on the south, and extends back and abuts on La Fayette street a distance of 206 feet to Sycamore street, and extends along and abuts on Vine street a distance of 63 feet. That on said lot orator has a two and three story building which he uses as a hotel for the accommodation of the traveling public for hire, called the "Bismarck Hotel." Next to said hotel on said lot orator has a two-story building which he uses for a saloon for the sale of liquors of all kinds, and orator avers that he is now doing and has heretofore done a lucrative business, both in said hotel and saloon. Said hotel and saloon are located on the corner of said lot or parcel of land at the intersection of La Fayette street and the right of way of respondent the Southern Railway, along which right of way runs the railroad track of said respondent. On the corner of said lot, fronting on the right of way of said railway and at its intersection with Vine street, orator has no buildings at this time; but orator avers that said corner is within about 50 feet of the Southern Express Company's office, which is in Decatur and within about 60 feet of the passenger station of the Louisville & Nashville Railroad Co., and of the respondent the Southern Railway, and that said passenger station is frequented daily by a large number of people. That the lot at said corner is near the center of the town, is level, located in a populous neighborhood, and at the intersection of Vine street with the right of way of the respondent the Southern Railway Company, and, being so situated, is well adapted to being improved, and especially is it suited for store buildings.

(4) Immediately in front of orator's said lot and hotel are the railroad tracks of the respondent the Southern Railway and the tracks of the Louisville & Nashville Railroad Company, and in front of said hotel at about a distance of 100 feet is the new Union Passenger Station, which is now being erected by respondent the Southern Railway Company for the use of itself and the said Louisville & Nashville Railroad Company. Said Union Station is on the other side of the track from orator's lot and hotel. La Fayette street in said city is about 30 feet in width, and runs substantially east and west, and is one of the main, if not the principal thoroughfares of the city connecting the western part with the eastern part of the city, and said street is on the north side of orator's lot, and your orator's lot abuts on said street a distance of 206 feet. Vine street, in the city of Decatur, is about 40 feet in width, about 264 feet south of La Fayette street, and runs substantially east and west, and is one of the principal thoroughfares in said city connecting the eastern part with the western part of the city, and bounds orator's lot on the south; said lot abutting thereon 63 feet.

(5) The city of Decatur has a population of about 5,000 people and does a large amount of business. The main street of said city, and the street upon which most of the business houses are located and where the principal trade and traffic is done, is called "Bank Street," and said street is about 99 feet in width, runs substantially north and south and extends from the Tennessee river on the north to the city of New Decatur on the south. That the city of New Decatur has a population of about 10,000 people and does a large amount of business. Said Bank street lies east of said orator's lot, and of the right of way and the railroad tracks and Union Passenger Station of the Southern and Louisville & Nashville Railroads, at a distance from orator's hotel and lots of about 500 feet. The right of way and tracks of respondent Southern Railway lie east of orator's lot, be tween said lot and said Bank street, and between the principal business and dwelling part of the city of Decatur and said lot. Said right of way and railroad tracks run substantially northeast and southwest, and bisect and cut through said La Fayette and Vine streets.

(6) For more than 20 years said La Fayette and Vine streets have been dedicated to the public and used by the public as streets in the city of Decatur, and said streets are public highways in said city.

(7) That in front of his hotel, on said above described lot, and between said buildings and respondent the Southern Railway Company's right of way, is an average distance of from 8 to 10 feet. Said ground is a part of orator's lot, and the means of access to said hotel from La Fayette street to customers on foot and in vehicles, and orator avers that he can step from the corner of his said lot on either Vine or La Fayette street across defendant's right of way, and that heretofore at said corners it has been used when desired to enter upon said lots from said streets at said crossing; that said La Fayette and Vine streets are the only streets that are open to him for communication with Bank street, and the entire eastern part of said city, and for communication by citizens of Decatur with your orator, either as patrons of orator's hotel or as customers at his saloon, unless they cross the railroad tracks and the right of way of the Southern and Louisville & Nashville Railway Company and go through the new Union Passenger Station now being built as aforesaid, which the respondent the Southern Railway Company can prohibit and prevent at any time that it sees proper so to do, unless they should approach your orator's property from the west, which would be in the rear of said hotel and saloon, and to do this customers and guests from Bank street and the eastern portion of said city would have to go north to Church street, across the right of way and track of the railroad on a bridge at a high elevation, go down Sycamore street a distance of about one block, thence down said street about a block to La Fayette street, thence into the rear of orator's hotel, or by going down La Fayette street a distance of about 206 feet could enter at the front of the hotel, and if customers or guests of your orator from Bank street and the eastern portion of the city did not take this course to reach your orator's hotel or saloon as just described then they would have to go south, cross the Louisville & Nashville track at what is called the "underpass," and thence across country for a great distance, and thence down Vine street to said lot, which would be a distance of fully a mile out of the way to reach said lot.

(8) That on May 31, 1905, the mayor of the city of Decatur entered into a contract or written agreement, as is shown by Exhibit A hereto attached and made a part hereof, and to which agreement the Southern Railway Company was the other party. On the 6th day of June the mayor and city council of Decatur passed a resolution, as shown by Exhibit B hereto attached and made a part hereof, and that under this contract and resolution the Southern Railway Company claims that that part of Vine street between Railroad and Sycamore...