Tombigbee Valley R. Co. v. Loper

• Citation: 63 So. 1006,184 Ala. 343
• Parties: TOMBIGBEE VALLEY R. CO. v. LOPER.
• Decision Date: 04 December 1913
• Court: Supreme Court of Alabama

63 So. 1006

184 Ala. 343

TOMBIGBEE VALLEY R. CO. v. LOPER.

Supreme Court of Alabama

December 4, 1913

Appeal from Chancery Court, Washington County; Thomas H. Smith Chancellor.

Bill by Edward B. Loper against the Tombigbee Valley Railroad Company to assess damage for value of use and occupation, and to balance of land, and for an injunction, in case of nonpayment. Decree for complainant, and respondent appeals. Affirmed.

The allegation as to ownership is as follows: "Your orator is the owner of [lands described by government subdivision] in Washington county, Ala., claiming to own same, and that he has claimed to own the same and been in possession of said land since the 19th day of June, 1895, when he obtained the same by patent from the United States, a copy of which is attached, and that the above-described lands is a part of the homestead of your orator, and has been since it was patented by him, at which time he was a married man, and has been a married man since that time until practically two years ago."

Turner Wilson & Tucker, of Chatom, for appellant.

Granade & Granade, of Chatom, for appellee.

SOMERVILLE J.

The bill of complaint, as amended, shows that complainant became the owner of a certain 40-acre tract of land in 1895, of which he has since been in possession, and that in 1902 respondent's predecessor and privy in interest built and operated its line of railway upon and across said land appropriating therefor a strip 100 feet in width; and that neither said original taker nor respondent, who purchased and succeeded to its rights in 1904 and has since possessed said right of way and operated said railway, has ever condemned or lawfully acquired same from complainant nor compensated him therefor, though he has demanded compensation. The prayer of the bill is that complainant's compensation and consequential damage be ascertained and awarded to him, and that in default of its payment respondent be enjoined from operating its railway over said land until payment shall be made.

It is fully settled in this state that when land is taken and appropriated by a railroad company without grant or condemnation according to law, whether such taking is with or without the knowledge and acquiescence of the owner, the owner may maintain his bill in equity for the ascertainment and recovery of appropriate damages; and that the decree therefor may be made effectual by writ of injunction, if...