Southern Ry. Co. v. Hood

• Decision Date: 12 June 1900
• Citation: 28 So. 662,126 Ala. 312
• Parties: SOUTHERN RY. CO. v. HOOD ET AL.
• Court: Alabama Supreme Court

28 So. 662

126 Ala. 312

SOUTHERN RY. CO. v. HOOD ET AL.

Supreme Court of Alabama

June 12, 1900

Appeal from chancery court, Etowah county; Richard B. Kelly Chancellor.

Bill by the Southern Railway Company against J. C. Hood and others to enjoin an action of ejectment. From a decree in favor of defendants, complainant appeals. Affirmed.

The bill in this case was filed by the Southern Railway Company against the appellees, several of whom were minors. The bill averred substantially the following facts: That in 1887 the Rome & Decatur Railroad Company entered upon certain lands specifically described in the bill, alleged to be the property of the defendants, and built its railroad across said lands, occupying a strip of land 50 feet on each side from the center of said track; that the respondents, with knowledge of the facts that the Rome & Decatur Railroad Company was proceeding to locate and construct its railroad over said land, stood by and allowed it to expend large sums of money in the location and construction thereof; that complainant is the legal successor in interest of said Rome &amp Decatur Railroad Company, and that since said road was built complainant and its predecessors in ownership have spent large sums of money "in improving, repairing and keeping up said roadbed and right of way, which was necessary for the conduct of its business"; that complainant is compelled to have the use of said strip in order to maintain and operate its railroad; that from the completion of said railroad in 1887, the complainant and those under whom it claims, have constantly operated said railroad, transporting freight, passengers and the United States mail, "and that during all of said time the respondents, though knowing of said operation and maintenance of said railroad over said land, and the constant expenditure of money on improvements and repairs on the same by orator and those under whom it claims, yet have never protested against the same, until the 4th day of November, 1896, when they brought an action of ejectment against orator for the recovery of said land." It was further averred in the bill that if the respondents should be permitted to prosecute said action of ejectment and recover said lands, the result would be the stopping of the operation of its railroad, and would work irreparable injury to the complainant.

The prayer of the bill was for an injunction restraining the respondents from the further prosecution of the action of ejectment. The respondents demurred to the bill upon the following grounds: (1) The bill does not show that any compensation was paid for the lands. (2) The bill shows that the lands were appropriated without paying any compensation to the owners or instituting any proceedings to condemn the lands. (3) The bill shows the lands were wrongfully and unlawfully entered on and held against the owners. (4) The bill contains no offer to do equity by paying just compensation for the lands. (5) The bill contains no offer to do equity.

Upon the submission of the cause upon these demurrers, the chancellor rendered a decree sustaining them. From this decree the complainant appeals, and assigns the rendition thereof as error.

Burnett, Hood & Murphy, for appellant.

Dortch & Martin, for appellees.

HARALSON J.

Article 1, § 24, of the state constitution provides, that "private property shall not be taken or applied for public use, unless just compensation be first made therefor; 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; but just compensation shall, in all cases, be first made to the owner."

Article 14, § 7, again, on the same subject, provides, that "municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury or destruction."

Agreeably with the provisions of the constitution on the subject, the general assembly long ago enacted legislation for the condemnation of the lands of another by a "corporation organized under the laws of this state, or any person, or association of persons, proposing to take lands, or to acquire an interest, or easement therein, for any uses for which private property may be taken." Code, § 1712 et seq. The corporation, person or persons proposing to take the lands of another for such uses, must become the mover or movers in any condemnation proceeding thus authorized. No provision is made for the owner of the land to initiate any such proceeding; and at law he cannot compel the payment of compensation for his property before it is taken, injured or destroyed. Falling back upon his constitutional rights however, if his property has been taken, injured or destroyed, without his consent, he may treat the intruder as a trespasser, and bring an action of trespass or an action of ejectment against him, or enjoin him by bill in equity from such unlawful interference, until just compensation has been ascertained and paid. Jones v. Association, 70 Ala. 227, s. c. 68 Ala. 48; ...