90 Ala. 54 | Ala. | 1890
Appellant sues to recover damages for injuries alleged to have been done to his property by defendant’s
So far as concerns the part of the block to which plaintiff subsequently acquired title, the gravamen of the action, the sole ground upon which plaintiff can be entitled to recover damages, is, that the embankment was unlawful, and therefore a nuisance, which defendant had maintained and continued. The complaint does not aver that the work was done in an improper or negligent manner, and the evidence shows that the embankment was constructed with care and skill, and in a manner conforming to the grade of other railroads at crossings on First avenue. A railroad, authorized by law to be built, is not a nuisance, if constructed with proper care and skill, and the right of way is first obtained. Defendant was incorporated under the general laws, and was authorized by its charter to construct a road from Goodwater to Birmingham, Alabama.
Twenty-ninth street is not within the corporate limits of any town or city, and has not been declared a public road by the Court of County Commissioners. Hence the cases of the C. & W. Railway Co. v. Witherow, 82 Ala. 190, and Perry v. N. O., M. & C. R. R. Co., 55 Aria. 413, are not applicable. The defendant being authorized by its charter, granted in accordance with the statute, to construct a railroad between fixed and terminal points stated in the declaration of incorporation, if, in constructing the road, it becomes necessary to take a part of a highway dedicated to the public use by the original owner, and not within the corporate limits of a town or city, the authority to do so arises from necessary implication.—M. & G. R. R. Co. v. Ala. Mid. Railway Co., 87 Ala. 501. The right of way along Twenty-ninth street was granted to the Columbus c% Western Railroad Company by the Elyton Land Company; at what time the bill of exceptions does not state, but certainly before the erection of the embankment in 1887. Defendant obtained the public right by the co-operative effect of the Constitution and the statutes, and the right or interest in the street of the Elyton Land Company by its deed.
It then remains to inquire whether plaintiff, or his grantor, had any right or interest in the street, which it was necessary for defendant to obtain; for, if a railroad is built in a public street or highway, not only must the public right, but also the private rights or interests in the street or highway of individuals, be acquired; otherwise, as to them, the railroad is unlawful, and may be a nuisance. Plaintiff contends, that the Elyton Land Company had dedicated the street to public use, beyond its power of interference, prior to its conveyance of the right of way to the Columbus & Western Railroad Company. This contention is founded on the facts, that the map
The bill of exceptions does not state at what time in 1886 the map of that year was made; but, construing the bill against the party excepting, we must presume it was made before Boland purchased the block, and was the map referred to in the conveyance to him. On this map dotted lines running along Twenty-ninth street are delineated, showing the designation of a portion thereof for railroad purposes. With this exception, the street is designated as it was originally laid out in the map of 1871. According to the map of 1886, the company dedicated the whole street to the width of eighty feet, reserving a right to impose on a portion of it the burden indicated by the dotted lines. In Ayers v. Penn. R. R. Co., 48 N. J. L. 44, the map of the town contained similar indications. It is said: “From all the circumstances, the plain intent was to dedicate to the public use as a highway the whole width of one hundred feet, subject to an easement for railroad purposes over a portion of the center, reserved to, and to be
But this case, as made 'by the record, does not involve the right and authority of the dedicator to impose additional burdens on the street, as against the purchasers of other lots or the public. The direct question is, what was the nature and extent of the title or interest in the street which passed by the company’s conveyance to Boland, plaintiff’s grantor. Having purchased with reference to a maj), on which were-dotted lines showing the reservation, of a right to devote a. portion of the street to railroad purposes, such reservation is valid and operative as to him, and limits and qualifies the nature and extent of his title to the center of the street — that is. in subordination to such reserved right. Until lots were sold, the title to the street resided in the Elyton Land Company; and if the conveyance to the Columbus c% Western Railroad Company had been made prior to the sale of any lots, the company having statutory authority to acquire a right of way over the street, would then have lawfully acquired it, and subsequent purchasers could not have complained. Boland having purchased the lot subject to the reserved right to devote a portion to railroad uses, this reserved right was the only private right or interest essential to be obtained by defendant as. against him, and being obtained by the deed to the Columbus & Western Railroad Company, the embankment is not a continuing nuisance. Plaintiff’s right to recover damages fails, so far as resting on this ground.
But it is insisted, that notwithstanding the Columbus & Western Railroad Company may have lawfully acquired the-right of way without taking any part of the right or interest of Boland in the street, the defendant, as its successor, is bound, under the Constitution, to make just compensation for the injury caused to his attingent property by the construction of the embankment, and that the right to the damages passed to-the plaintiff by his deed. We so construed the Constitution in the City Council of Montgomery v. Townsend, 80 Ala. 489. But the damages accrue to the then owner of the property,
Affirmed.