Southern Ry. Co. v. Hayes

• Decision Date: 09 April 1907
• Citation: 43 So. 487,150 Ala. 212
• Parties: SOUTHERN RY. CO. v. HAYES ET AL.
• Court: Alabama Supreme Court

43 So. 487

150 Ala. 212

SOUTHERN RY. CO. v. HAYES ET AL.

Supreme Court of Alabama

April 9, 1907

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

Bill by Fannie Hayes and others against the Southern Railway Company. From a decree for complainants, defendant appeals. Affirmed.

This was a bill exhibited by Fannie Hayes, and Clifton, Bessie Stella, Walter, Minnie, Arthur, Lucile, and Memory Hayes, by Fannie Hayes, next friend, against the Southern Railway Company. The allegations of the bill are that the complainants have been the owners in fee simple of a certain parcel of ground in the city of Decatur which abuts on the southeastern side of a cut or depression in which is located a part of the line of railway of respondent. The said strip or parcel of land is described in the deed which is attached to the bill as an exhibit, and it is averred that complainants are the owners in fee of all of said lot inclosed within the fence hereinafter referred to; that there is and has been for many years on said lot a building, now used as a dwelling house and formerly used as a hotel or house of entertainment, which sets back some 10 or 20 feet from the edge of the cut, and along or near the southeastern side of the property, and upon the top of said cut there was and had been for more than 20 years, a line of fence which had been maintained by complainants and their predecessors in title; that on the 5th of September, 1906, while complainants were so in possession of said real estate and while occupying the same as a home, sundry and divers agents, employés, or contractors of the defendant railroad company entered upon that part of the said real estate next and nearest to said cut, and without the consent of the complainants, or any of them, demolished and removed all of said fence, cut down one of the shade trees in the yard, and tore and removed a portion of the surface of said real estate, which constituted a part of the yard of the aforesaid dwelling house, and very near to some houses on said property occupied by tenants of complainants; that the strip of ground upon which said depredations were commit ted was about 6 feet in width at the south end and about 10 feet wide at the north end, and extending across said property the length of about 150 feet that during the depredations aforesaid complainants protested and expostulated, but without avail with said agents, etc and complainants believe and fear that they will continue their work of grading and excavating along the whole length of the lot, and cut it down so as to conform to the grade now existing at the bottom of the cut. It is alleged that the value of the property and the damages growing out of the trespass will not exceed $1,990. and the complainants will not claim more than that. It is alleged that the respondent is a railway corporation, with the right of eminent domain and has not paid, or tendered or offered to pay, complainants anything in compensation for the depredation. It is further alleged that all the complainants, except Fannie Hayes, Clifton Hayes, Bessie Hayes, and Thomas Hayes, are children of Fannie Hayes, born after the execution of the deed made an exhibit to the bill. It is alleged that the defendant, in doing the wrong complained of, was preparing and undertaking to add to its line of railway a side track, or to move its present track, and thus was undertaking to subject this property to its uses and purposes as railway company property, and thus was seeking to take the private property of complainants without condemnation and without paying therefor. The prayer was for a temporary injunction against the further depredation upon the property for any purpose, and at the final hearing a permanent injunction for the same purpose, and for damages for depredations already committed. There were demurrers to the bill, pointing out that there was a plain and adequate remedy at law; that it did not appear that defendant was insolvent; that it appeared that...