Southern Ry. Co. v. Todd

Decision Date10 February 1966
Docket Number8 Div. 219
Citation279 Ala. 260,184 So.2d 341
PartiesSOUTHERN RAILWAY COMPANY v. Ashford TODD, Judge of Probate.
CourtAlabama Supreme Court

Bell, Richardson, Cleary, McLain & Tucker, Huntsville, for appellant.

Chas. H. Younger, Huntsville, and Maurice F. Bishop, Birmingham, for appellee.

MERRILL, Justice.

This appeal is from a denial and dismissal by the circuit court of a petition for mandamus, in which appellant sought to have the Judge of the Probate Court of Madison County dismiss an amended petition of the City of Huntsville for condemnation of certain lands of appellant for the widening and straightening of a railroad crossing and one of its approaches.

The amended petition for condemnation by the City of Huntsville was heard before Hon. Ashford Todd, as Judge of Probate, and on October 17, 1963, the order or condemnation was granted. Before the appointment of commissioners or any other proceedings, this petition for mandamus was filed with the circuit court, alleging that the proposed street crossing would interfere materially with appellant's freight and switching yard and main tracks, and averring appellant's lack of an adequate remedy by appeal because the city could acquire a right of entry notwithstanding the appeal.

After a hearing of five days and the building of a transcript of 571 pages, the court entered a decree, the pertinent part of which reads:

'Come the parties and issue being joined between the Petitioner and Respondent said cause is submitted to the Court upon the pleadings, the oral testimony taken before the Court and the exhibits to such testimony. Upon consideration of same the Court is of the opinion that the evidence shows a public necessity for the widening of the present public grade crossing across the tracks of the Petitioner for public convenience and that the condemnation of the land sought to be acquired for widening of such right-of-way is actually necessary and will not materially interfere with the public use to which said property is already subjected. The Court is further of the opinion that the acquisition of the easement for the widening of the present public right-of-way now crossing the tracks of the Southern Railway Company is in the public interest and will substantially contribute to the orderly and safe movement of traffic and that Petitioner can still use its facilities after making certain modifications the expense of which will be a matter to be considered upon the awarding of damages and compensation to Petitioner.

'The Court is further of the opinion the prayer of the petition should be denied and the petition should be dismissed.

'It is therefore ordered and adjudged by the Court that the peremptory writ prayed for in the petition be and the same is denied and said petition is dismissed.'

Mandamus is the proper method to review a ruling of the probate court when it has entered an order of condemnation. J. Blach & Sons v. Hawkins, 238 Ala. 172, 189 So. 726; Gerson v. Howard, 246 Ala. 567, 21 So.2d 693; Lybrand v. Forman, 259 Ala. 354, 67 So.2d 4.

Appellant argues assignments of error 2 through 6 in bulk since they are related. Assignment one is not argued.

The main argument of appellant is that it is protected by Tit. 19, § 9, Code 1940, which reads:

'If the property sought to be condemned, or any portion thereof, or interest therein, has already been subjected to or devoted to a public use, such land or portion thereof, or interest therein, shall not be taken for another and different character of public use unless an actual necessity for the specific land or portion thereof or interest therein shall be alleged and proven, and unless it be alleged and proven that such other and different character of public use will not materially interfere with the public use to which such property is already subjected or devoted.'

It is agreed that the subject property was devoted to a prior use by appellant; and appellant contends that the evidence does not support a finding that the use by the city would not materially interfere with the public use to which the property was already subjected by appellant.

There are three main streets leading from downtown Huntsville to residential and business areas to the north-Church, Washington and Meridian--and all cross appellant's tracks at grade. Seven tracks cross Church Street and eight cross Washington, the street and crossing involved in the instant case.

For more than one hundred years, there has been a public grade crossing over appellant's tracks at Washington Street. That part of Washington south of the tracks has a 66 foot right of way with 40 foot paving. That part north of the tracks has an 80 foot right of way with 48 foot paving. Presently, paving over appellant's...

To continue reading

Request your trial
5 cases
  • Mixon v. Whitman
    • United States
    • Alabama Supreme Court
    • 17 Marzo 1966
    ... ... Valenzuela v. Sellers, 253 Ala. 142, 43 So.2d 121; Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81, 50 So. 1036. In the case last cited we said: ... 'The appellant filed a plea of the general ... ...
  • Florence v. Williams
    • United States
    • Alabama Supreme Court
    • 30 Septiembre 1983
    ...are based. Freeman v. Smith, 409 So.2d 770 (Ala.1982); Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856 (1968); Southern Railway Co. v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); Chestang v. Burns, 258 Ala. 587, 64 So.2d 65 (1953). In condemnation proceedings, moreover, the conclusion of the......
  • Ex parte Alabama Great Southern R. R.
    • United States
    • Alabama Supreme Court
    • 29 Mayo 1981
    ...relief. The decisions of this Court in Brittain v. Southern Railway Co., 280 Ala. 650, 197 So.2d 453 (1967); Southern Railway v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); Lybrand v. Forman, 259 Ala. 354, 67 So.2d 4 (1953); and Gerson v. Howard, 246 Ala. 567, 21 So.2d 693 (1945), recognized ......
  • Brittain v. Southern Ry. Co.
    • United States
    • Alabama Supreme Court
    • 30 Marzo 1967
    ...for condemnation. This appeal is from that judgment. Code 1940, Tit. 7, § 1074. In the recent case of Southern Railway Company v. Todd, 279 Ala. 260, 262, 184 So.2d 341, 343, it was held that 'mandamus is the proper method to review a ruling of the probate court when it has entered an order......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT