Western Ry. of Alabama v. Alabama G.T.R. Co.

• Decision Date: 27 July 1892
• Citation: 96 Ala. 272,11 So. 483
• Parties: WESTERN RAILWAY OF ALABAMA v. ALABAMA G. T. R. CO.
• Court: Alabama Supreme Court

11 So. 483

96 Ala. 272

WESTERN RAILWAY OF ALABAMA v. ALABAMA G. T. R. CO.

Supreme Court of Alabama

July 27, 1892

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

Action by the Western Railway of Alabama against the Alabama Grand Trunk Railroad Company to enjoin defendant from constructing its track along and upon a highway the fee of which and abutting lands is claimed by plaintiff. From a decree in favor of defendant, plaintiff appeals. Affirmed.

Brickell, Semple & Gunter, for appellant.

Tompkins & Troy, for appellee.

THORINGTON J.

Appellant is engaged in business as a common carrier, and as part of its system operates a railway from Montgomery, Ala., to West Point, Ga. It claims to be the owner in fee of certain lands adjacent to and north of the northern corporate limits of the city of Montgomery, and that said lands are necessary to the proper conduct of its business and the successful operation of its road; that such lands, being necessary for its uses cannot be condemned as a right of way by any other railroad company; and that no necessity for such condemnation by any other company can arise, for the reason that the lands adjoining appellant's on the west are suitable for such purposes and belong to individuals. The lands so claimed by appellant lie partly in section 6, township 16, range 18, and partly in section 31, township 17, range 18, the latter being immediately north of and adjoining the former. The lands in section 6 formerly belonged to one Tarleton, who, in 1835, had the same surveyed and divided into 16 lots, of 20 acres each, and a plat thereof made and recorded in the office of the judge of probate for Montgomery county, said plat being known as the "Brice Battle Plat." On this plat there is a strip extending northward from the southwest corner of said section 6, and from the northern city limits along the western end of each of the lots numbered on said map, 1, 3, 5, 7, 9, 11, 13, 15, which is marked on said map "Road," and which strip originally constituted part of the tract on which said lots were platted. Shortly before and also after the recording of this plat conveyances of said lots were made by Tarleton and his vendees, referring to said map, and some of them referring in express terms to the fact that a road was reserved from the west end of said lots and east of the range line. After said lots had been successively conveyed to different parties in the manner above stated, Fleming Freeman conveyed to the Montgomery & West Point Railroad Company, for a right of way, a strip of land 50 feet wide on each side of its track, from the center line thereof, commencing at the southern boundary line of said section 6, and extending northward through said section 6, and also through said section 31. This grant also included additional lands east of the track, not involved in this case. This deed is, by its terms, confirmatory of prior conveyances made by Figh and Stewart in 1838 to the Montgomery Railroad Company of the right of way over the same lands, but which last-mentioned deeds failed to designate the width of such right of way. And in 1856 Freeman executed another deed to said Montgomery & West Point Railroad Company conveying to it in fee simple the lands in said sections 31 and 6, embracing the lots above mentioned, and on which the said Jackson Ferry road is located. The two conveyances from Freeman refer in terms to the Brice Battle map, and designate the lots by numbers according to said map, and it is by virtue of these two deeds appellant claims the property in controversy, it having succeeded to the property and franchises of both the Montgomery Railroad Company and of the Montgomery & West Point Railroad Company. The width of the strip marked "Road" on the Brice Battle plat is not designated on the map, but prior to the making of the map a road from 10 to 12 feet wide, in 1826, and widening from 1834 from 75 to 100 feet, its present width, was used by the public as a highway extending over the land, indicated on the map as a road, from the southern line of said section 6 over the western end of said lots, and through appellant's lands in said section 31, to a public ferry across the Alabama river known as "Jackson's Ferry," and thence into what was then Autauga county. This road was in use by the public, as the proof shows, from 1826, and has been known for about 40 years or more as the "Jackson Ferry Road." Appellant's railroad was built about 1838 under a charter granted in 1834 by the legislature of this state to the Montgomery Railroad Company, to the property rights and franchises of which company appellant has succeeded as above stated. Among other provisions of said charter is the following: "And be it further enacted that in the construction of said railroad the president and directors shall not obstruct or use any public roads now or hereafter to be established, but shall provide convenient ways by which they shall cross the railroad." In 1891 the Montgomery & Sylacauga Railroad Company obtained from the general assembly of Alabama an act granting it rights of way across and along public roads, and streets and alleys in unincorporated villages and town sites, and afterwards, by authority of another act, this company was reorganized under the name of the Alabama Grand Trunk Railroad Company, the new company being the appellee. Pursuant to the legislative authority aforesaid, appellee obtained from the board of revenue of Montgomery county the right to construct its road along said Jackson Ferry road from Groom street, at the northern limits of the city of Montgomery, northwards, and parallel with appellant's road, to the extent (and beyond) that said road passes through appellant's lands; the latter's railroad being east of said Jackson Ferry road, and not on it.

Appellee was proceeding to build its roadbed along said Jackson Ferry road through said sections 6 and 31 when appellant filed its bill for an injunction, claiming to be the owner of the property on which appellee's road is being constructed; that appellee had entered upon its lands without its consent, and without making compensation; that it is not necessary that appellee should take its lands for a right of way; that said lands are necessary to the operation of its own road; and that irreparable damage will result to appellant, unless the injunction be granted; and that appellee is insolvent. The bill also contains other averments, not material to be considered under the view we take of the case. Appellee answered the bill, denying appellant's ownership of the property on which it is locating and constructing its roadbed, and averring that it is building its railway on a public road, viz., the said Jackson Ferry road, and that it has authority for such purpose from the general assembly of Alabama, and from the board of revenue of Montgomery county, and denying its insolvency; and also denying that irreparable or other damage will result to appellant by the construction of its road, and also setting up as defensive matter many of the facts above detailed. Testimony was taken by both parties, and the cause was submitted, on motion to dissolve the injunction, to dismiss the bill for the want of equity, and for final decree. The chancery court rendered a decree denying relief, dissolving the injunction, and dismissing the bill, and the appeal is from that decree.

Prima facie the bill makes out a clear case for injunctive relief,-not a case of trespass on lands by a corporation or individual not invested with the right of eminent domain, which, in order to authorize relief, must be alleged to be attended with the insolvency of the defendant, or the insufficiency of legal remedies, but a case which calls for the exercise of the special jurisdiction inhering in courts of equity to prevent abuse of their powers by corporations and individuals invested with the right of eminent domain, and to restrain them within the limits of such powers. This last-mentioned jurisdiction rests upon a different principle from that which governs in cases of trespass, nuisance, or waste, and is exercised by courts of equity, in proper cases, without reference to the insufficiency of legal remedies or irreparable damage. Highland Ave. & B. Ry. Co. v. Birmingham Union Ry. Co., 93 Ala. 505, 9 South. Rep. 568; East & West R. Co. v. East Tennessee, V. & G. Ry. Co., 75 Ala. 275. The case, however, as developed by appellee's answer and the testimony of both parties, assumes a different aspect from that which appears on the face of the bill. We find the facts reasonably and satisfactorily established by the testimony to be as hereinabove set forth, whence it appears that appellant, instead of owning for its corporate purposes the property on which appellee is laying its tracks, has no other claim thereto than such as exists by virtue of the two deeds from Freeman, and that by one of these a mere right of way of 50 feet on the west side of its road is conveyed, which respondent claims does not include the Jackson Ferry road, and which the testimony, at least, leaves in doubt, and the other deed conveyed lands which originally included the land now constituting the Jackson Ferry road, but which, before such conveyance, had become a public road, as to part of it by express dedication, and as to the whole of it by long-continued and uninterrupted use by the public under circumstances which had fixed its status as a public road, and which, in point of fact, as some of the witnesses show, had been in use as a public road before the dedication by Tarleton in 1850. In assuming that the proof shows a right in the public to the Jackson Ferry road by user and prescription, we do not ignore the principle declared by this court in ...