Wood v. City of Mobile

• Decision Date: 02 April 1901
• Docket Number: 939.
• Citation: 107 F. 846
• Parties: WOOD v. CITY OF MOBILE.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F. 846

WOOD v. CITY OF MOBILE.

No. 939.

United States Court of Appeals, Fifth Circuit.

April 2, 1901

D. P Bestor and R. H. Clarke, for plaintiff in error.

B. B Boone, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge.

The legislature of the state of Alabama, by an act approved November 30, 1898, authorized the city of Mobile to provide maintain, and operate systems of waterworks and sewerage; and by an act approved November 30, 1898, authorized the city of Mobile to make and issue bonds for building, purchasing, or otherwise acquiring systems of waterworks, and to secure said bonds; and by an act approved December 10, 1898, authorized the city of Mobile to condemn by eminent domain the outstanding interest in what is known as the 'Mobile City Waterworks.' The last-mentioned act reads as follows:

'Be it enacted by the general assembly of Alabama, that the city of Mobile, for the purpose of erecting, constructing and operating a system of water works to be owned and operated by the said city, be and is hereby expressly authorized and empowered to condemn, by exercising the rights of eminent domain, in the manner provided by law for the condemnation of lands for public use, all outstanding interest of every kind, character or description, whether the same be legal or equitable, not owned by said city of Mobile, in and to these certain water works known respectively by the name of Stein or Mobile City Water Works, being the same water works constructed under and pursuant to an act entitled 'An act for the promotion of the health and convenience of the city of Mobile, by the introduction into said city of a supply of wholesome water, to be used for domestic purposes, and for the extinguishment of fires,' approved January 7th, 1841. Approved December 10th, 1898.'

Article 1, c. 42, Secs. 1712-1726, inclusive, of the Alabama Code of 1896, provide for the manner of proceeding for the condemnation of lands for public uses. The only one of these sections material to quote here is section 1721, part of which reads as follows:

'The order of condemnation upon the payment of the sum ascertained and assessed by the verdict of the jury, or the deposit thereof in court for the defendant, shall vest in the applicant the easement proposed to be acquired for the uses and purposes stated in the application and for no other uses or purposes.'

Under these statutes, the city of Mobile, by proceedings in the probate court of Mobile county, condemned, by exercising the right of eminent domain, all the interest of Walter Wood in what is known as the 'City or Stein Waterworks,' such interest being 54 28/100 per cent. of the whole. The proceedings in the probate court were in the manner provided by the general law of the state of Alabama for the condemnation of lands for public use, and the decree condemned for the use of the city of Mobile, and vested title in said city, all and singular, 'the perpetual right to all the interest of every kind, character, and description belonging to Walter Wood, of Philadelphia, Pennsylvania, whether the same be legal or equitable, in and to those waterworks known as the 'Mobile City Waterworks.' ' In these proceedings one of the therein named defendants, Walter Wood, plaintiff in error here, appeared, and by counsel filed a plea in abatement, then a demurrer, and followed with an answer. On the theory that the proceedings in the probate court of Mobile county were void, the plaintiff in error, Walter Wood, instituted in the lower court an action of ejectment to recover possession of 54 28/100 per cent. of the said waterworks. The defendant below answered with a plea of not guilty, which, it is said, is the only appropriate plea to an action of ejectment in the state of Alabama. Smith v. Cox, 115 Ala. 506, 22 So. 78. There was a trial, and judgment for the defendant. A bill of exceptions in the transcript shows that on the trial the plaintiff below offered the evidence of several witnesses tending to describe the property in question, and the extent of the use made of the same by the defendant. Plaintiff also offered in evidence an agreed statement of facts bearing on the same questions, and containing, among other things, the following statement:

'That, acting under and by virtue of such award, the city of Mobile, on the 14th day of May, 1898, acquired the title to and possession of all the interests of plaintiff's co-tenants in said property and franchises, such aggregated interests being an undivided forty-five and 72/100 per cent. thereof, and claimed to have acquired the property in and right to the possession of plaintiff's fifty-four and 28/100 per cent. thereof, and in exercise of such claim it

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