128 Ala. 110 | Ala. | 1900
In proceedings for the condemnation of land for public uses, there is a manifest distinction between the law as it existed under the Code of 1886, Art. 2, page 698, embracing 'sections 3207 to 3220, and the present statute, Code 1896, Art. 1, embracing sections 1712 to 1726. Under the former, only one hearing was provided from which an appeal could be prosecuted, and upon this hearing all questions of law and fact, including the assessment of damages to the landowner by a constitutional jury of twelve men, provided for under section 3210, were finally determined. Under
By an act of the legislature, approved February 28th, 1889 (Session Acts, 1888-89, p. 112), section 3210 of the
Following this case, came the cases of the Alabama Midland Railway Co. v. Newton, 94 Ala. 443; Louisville & Nashville R. R. Co. v. The People’s St. R’y Imp. Co., 101 Ala. 331, and Memphis & Charleston R. R. Co. et al. v. Hopkins, 108 Ala. 159, in which the doctrine laid down by the court in the Postal Telegraph Cable Company case, supra, was reaffirmed, and furthermore assuming, which was evidently an oversight, that the amendatory act of February 18, 1891, received construction in that case. In the present -statute, Code -of 1896, the provisions of that act are substantially embodied, though in a more orderly and methodical arrangement, which, together with -other sections, make up the -system of condemnation procedure under which the proceedings in the present case were had. The objection of having two appeals pending at one and the same time from the same judgment, as the law stood at the time of the decision in the Postal Telegraph Cable Co. case is obviated under the present -statute, since the two appeals -are from different judgments. But the difficulty remains o-f a -possible denial of the constitutional right of -a trial by jury if full operation be given -section 1717 in every case as to the time prescribed in said section tion within which the appeal may be taken. It is not impossible, indeed, not improbable, for a -ease to occur, in which the right of appeal under section 1720 may arise within the period -covered by section 1717, and be lost in a race of diligence, by the -applicant for condemnation first securing an appeal under section 1717, on the preliminary judgment. We say lost, because the statute provides that the appeal under -section 1720 must
From what we have said, it results that the cases of the Ala. Midland R’y Co. v. Newton, 94 Ala. 443, Louisville & Nashville R. R. Co. v. People’s St. R’y & Imp. Co., 101 Ala. 331, and the Memphis & Charleston R. Co. et al. v. Hopkins, 108 Ala. 159, in so far as they are in conflict with the views herein expressed, must be overruled. The motion, therefore, to dismiss the appeal in this case must be denied.
The record shows that the-East Birmingham Land Co. had conferred upon it powers to construct a railroad, and in connection with the railroad, it was entitled to and had granted to it certain special privileges which are set forth in the special acts -of the G-eneral Assembly
Objection was made to parol proof of the proceedings of the stockholders of the appellee. The evidence discloses that there, was no record or written memoranda of the minutes kept, and in such case we think there can he no doubt that the proceedings had by the
We find no reversible error in the record, and the decree of the probate court i'S affirmed.