Southern Ry. Co. v. McIntyre

• Decision Date: 02 July 1907
• Citation: 44 So. 624,152 Ala. 223
• Parties: SOUTHERN RY. CO. v. MCINTYRE.
• Court: Alabama Supreme Court

44 So. 624

152 Ala. 223

SOUTHERN RY. CO. v. MCINTYRE.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Morgan County; Marvin West, Special Judge.

Action by Rufus P. McIntyre against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count of the complaint, after describing the land alleged to have been trespassed upon, the improvements thereon, and that the defendant is a railway corporation engaged in the operation of trains, etc., alleges that on or about the 1st day of December, 1904, the defendant caused an excavation two or three feet deep to be made on and across plaintiff's property, to wit, the northeast end thereof and has constructed or caused to be constructed a railroad track in said excavation on plaintiff's land, and proposes to propel by steam engines and cars, for the purpose of transportation, etc. Plaintiff then avers that the entry on his land by the railroad company as aforesaid was without his consent and without making him any compensation therefor and that certain parts of his property have been rendered wholly useless to him, and the value of the remainder of his property has been greatly decreased, etc. It is alleged that the property was bounded on one side by Sycamore street and Walter street. This count was afterwards amended by adding the following: "Plaintiff alleges that in constructing the said railroad tracks at the intersection of Sycamore and Water street, along Water street, and across Sycamore street immediately preceding and leading to the excavation upon plaintiff's property as aforesaid, the defendant made or caused to be made a high embankment, to wit, seven feet high upon that part of the street nearest the plaintiff's property, to wit, beween plaintiff's lot and the center of said street, upon which defendant constructed or caused to be constructed a railroad track, of which the track in the excavation on plaintiff's property is a continuation or extension; and plaintiff avers that by reason of said embankment travel along Sycamore street from plaintiff's property to the river and from the river to plaintiff's property is obstructed and prevented, except by foot, and travel from plaintiff's property up and down Water street impeded, except by foot." It is also alleged that defendant is authorized to do business in the state of Alabama, and was at the time complained of. Demurrers...