Southern Ry. Co. v. Birmingham, S. & N.O. Ry. Co.

• Decision Date: 18 December 1900
• Citation: 131 Ala. 663,29 So. 191
• Court: Alabama Supreme Court
• Parties: SOUTHERN RY. CO. v. BIRMINGHAM, S. & N. O. RY. CO. v. SOUTHERN RY. CO.

29 So. 191

131 Ala. 663

SOUTHERN RY. CO. v. BIRMINGHAM, S. & N. O. RY. CO. v. SOUTHERN RY. CO.

Supreme Court of Alabama

December 18, 1900

Appeal from chancery court, Dallas county; Thomas H. Smith Chancellor.

Bill by the Southern Railway Company against the Birmingham, Selma &amp New Orleans Railway Company to restrain the crossing of its tracks. From an order modifying an injunction, both parties appeal. Complainant's appeal reversed, and decree rendered. Defendant's appeal affirmed.

The bill in this case was filed by the Southern Railway Company against the Birmingham, Selma & New Orleans Railway Company and averred substantially the following facts: The Southern Railway owned under lease and operated a line of railway from Selma to Meridian, Miss.; and at a certain point along said line of railway, in the county of Dallas, the complainant had constructed and was maintaining a side track upon which there were placed 15 or more cars belonging to the Southern Railway Company. The Birmingham, Selma & New Orleans Railway Company is the owner of the charter of a railway company that had surveyed and located a line of road leading from Selma in a southwesterly direction. This line of road was located by the defendant across the complainant's road at a point where the side track on which were the cars was situated. The Birmingham, Selma & New Orleans Railway instituted ad quod damnum proceedings in the probate court of Dallas county for the purpose of condemning the right of way on the line of the said railway company at said designated point. Upon the hearing of the petition the court granted the application of the Birmingham, Selma & New Orleans Railway Company to condemn the right of way for the tracks of the Birmingham Selma & New Orleans Railway across the tracks and right of way of the Southern Railway Company. From this order granting said application the Southern Railway Company took an appeal under section 1717 of the Code, within the 30 days after the rendition of said order. After such appeal was taken, and while it was pending in the supreme court, the probate court appointed commissioners to assess the damages to be paid by the Birmingham, Selma & New Orleans Railway Company to the Southern Railway Company for the right of way so condemned. These commissioners reported, and in accordance with their appraisement of the damages the probate court of Dallas county fixed the amount to be paid by the Birmingham, Selma &amp New Orleans Railway Company, and this amount was paid by said latter company into the probate court. Thereupon the Birmingham, Selma & New Orleans Railway Company proceeded to construct its track across the right of way and tracks and side tracks of the Southern Railway Company. In order to construct its said railway across the side track of the Southern Railway Company, which was several feet below the grade of the main line, the Birmingham, Selma & New Orleans Railway Company moved the cars standing upon said side track, and built its track upon the top of said side track, so as to prevent the cars from being moved off of said side track. The Birmingham, Selma & New Orleans Railway Company also disconnected said side track from the main line, rendering it useless to the Southern Railway Company. Upon these facts the complainant prayed for the issuance of a writ of injunction directed to the Birmingham, Selma & New Orleans Railway Company, and all of its officers, servants, agents, and employés, restraining them from further interference with the side track and right of way of the complainant pending a hearing of the appeal in the supreme court, and that the said defendant be required to remove the obstructions placed upon said right of way, main track, and side track of the complainant, and that they be commanded to restore or allow the complainant to restore the side track and the main track to the same condition that it was before the Birmingham, Selma & New Orleans entered upon and changed the same, and that upon the final hearing said injunction be made perpetual. Upon the filing of the bond required by the complaint, a preliminary writ of injunction was issued in accordance with the prayer of the bill. The defendant railway company filed its answer, in which it denied the material allegations relating to its interference with the conduct of the business of the complainant company, and its obstruction of the track of said complainant company, and denied that said side track was of value, and further averred that after having paid the damages assessed by the commissioners appointed, and in accordance with the order of the probate court, it proceeded to utilize the right of way condemned by said order. The defendants moved the court to dismiss the preliminary injunction issued, upon the ground that the bill was without equity, and also upon the sworn denials of the answer. There were affidavits filed in behalf of the complainant and respondent, substantiating their respective contentions. On the submission of the cause the chancellor rendered the following decree: "This cause was submitted on motion to dissolve the injunction for want of equity in the bill, and, on the denials of the answer, was argued by counsel for complainants and respondents, and duly considered. I am satisfied that there is equity in the bill in so far as it seeks to restrain the defendants from interfering with complainants in the ordinary and usual use of their property and franchise, but that there is no right shown to restrain the defendants from acting under and in accordance with the decree of the probate court,...