Western Union Telegraph Co. v. Louisville & N.R. Co.

• Decision Date: 30 June 1916
• Docket Number: 2 Div. 632
• Citation: 199 Ala. 441,74 So. 946
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

74 So. 946

199 Ala. 441

WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.

2 Div. 632

Supreme Court of Alabama

June 30, 1916

On Application for Rehearing, February 15, 1917

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Action to condemn an easement for a telegraph line by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. From a judgment denying the petition plaintiff appeals. Affirmed.

Rushton Williams & Crenshaw, of Montgomery, Forney Johnston, of Birmingham, and Albert T. Benedict and Francis R. Stark, both of New York City, for appellant.

Mallory & Mallory, of Selma, Dortch, Martin & Allen, of Gadsden, and Jones, Thomas & Field, of Montgomery, for appellee.

PER CURIAM.

Affirmed upon the authority of W.U. Tel. Co. v. L. & N.R.R Co., 71 So. 118. All the Justices concur.

On Application for Rehearing.

Upon the reversal of the cause on the former appeal the petition was amended, and demurrer to the petition as amended was sustained by the court below. The petitioner declined to plead further, or to further amend its petition, judgment was entered denying the petition, and from this judgment the appeal is prosecuted.

In rendering the judgment, the court below also rendered an opinion (which is found in the record) specifically pointing out the assignment of demurrer, which assignment was considered well taken, as disclosed by the following language:

"The petition as amended fails to aver that the specific land, or portion thereof, or interest therein, sought to be condemned by petitioner for its public use, is actually necessary, and no facts are alleged showing the actual necessity for the specific land, or portion thereof, or interest therein, to be subjected to public use of the petitioner."

It clearly appears that the question of vital importance in this litigation turns upon the proper construction of section 3867 of the Code of 1907. On the last appeal this court departed from the construction given the statute in the case of W.U. Tel. Co. v. L. & N.R.R. Co., 184 Ala. 673, 62 So. 797, and, speaking of what we construed to be the proper meaning of the words "actual necessity," said:

"The necessity is defined by the act as 'actual' meaning 'real,' and we are of the opinion that by such language is meant such actual necessity as arises from either physical or overpowering economical conditions; the question of practical

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