137 Ala. 553 | Ala. | 1902
Tba bill in this cause seeks- to enjoin the respondent from constructing its railroad along and across certain described lands in which the complainant asserts an interest. The equity of the hill rests upon the allegations of an interest owned by complainant in the lands and the attempted taking by respondent for public use without first making just compensation therefor. If it be conceded that complainant is shown to have such an interest in the lands as could he condemned by the respondent railroad company, then the equity of the bill is beyond cavil; and this is true without regard to: whether the injury would he irreparable or the remedy at law to recover the damages suffered would be adequate or inadequate.- — Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 129, and eases cited. As to whether the complainant has such an interest, under the view we take of the case, it unnecessary to decide, since the decree of the court dissolving the injunction on motion of respondent was correct, because whatever his interest may he, it Avas subordinate to- the rights of the respondent. In other words, he acquired no property right's in the right of way as against the respondent. This is clearly sho-Avn by the ansAver and the affidavits submitted in support of the motion. To see, that this is so, Ave have only to point out that in May, 1898, nearly two years prior to the execution of the contract under which the complainant claims to have acquired his right to quarry rock upon the land along and over the right of way of the respondent, the OAvner of. the land, from AAdiich he acquired his rights, had conveyed by deed, which Avas recorded, this right of way to the Mobile & Ohio Railroad Company Avho went into possession of it, and designated its boundaries by stakes driven in the surface of the soil. And these monuments marked the boundary of the right of way, when the. complainant entered upon it. Subsequently that company conveyed by deed, its interest to this respondent, and it is under and by virtue of this, conveyance tha.t it claims the right to construct its road bed, etc. Avithout paying any compensation to the complainant. It is insisted, however, that the respondent acquired no rights under this deed, because the-Mobile & Ohio Rail
We do not construe the opinion in Long v. Gill, 80 Ala. 408, cited and relied upon by appellant’s counsel, as deciding that Long did not acquire under the grant to him the right of Avay. The court distinctly held the contrary. Indeed, that case is an authority against the contention of appellant that the deed to the Mobile & Ohio Railroad Company passed no title to the easement conveyed by it. See: also Ala. Midland R. Co. v. Brown, 98 Ala. 647; Burrow v. Terre Haute & L. R. Co., 107 Ind. 432; Conwell v. The Springfield & N. W. R. Co., 81 Ill. 232; Ross v. C., B. & Q. R. Co., 77 Ib. 127; Onthank v. Lake S. & M. S. R. Co., 71 N. Y. 194; Warner v. Railroad Co., 39 Ohio St. 70; V. & M. R. Co. v. Barrett, 67 Miss. 579; Macon & A. R. Co. v. Bowen, 45 Ga. 531; Pa. R. Co. v. Holcroft, 173 Pa. St. 496; Olive v. Sabine & E. T. R. Co. 11 Tex. Civ. App. 208.
Affirmed.