93 Ala. 505 | Ala. | 1890
— It appears from the bill as amended.that the complainant had, for about five years before the commencement of the suit, been operating by horse power a street railroad over and along 19th Street in the city of Birmingham, as that street extends from 6th Avenue to and beyond 10th Avenue in said city; and that it had duly acquired a right of way for its said railroad along said route. It is further shown by the bill that when it was filed the defendant had been for some time and was then operating a railroad by steam power on a single track on and along 10th Avenue in said city from 21st Street westerly on and over and across complainant’s at the crossing of 10th Avenue and 19th Street; that defendant was then constructing another track on 10th Avenue, which it was about to build across complainant’s line of railroad and right of way at said point, without paying complainant any compensation therefor, and without the consent of the complainant, and without other authority of law. The bill alleges that the crossing of complainant’s right of way and tracks by the defendant’s proposed additional track “will greatly damage complainant by the wear and tear of its cars crossing the same and keeping said crossing in good repair, and otherwise greatly inconvenience arid damage complainant.” The prayer was for a temporary injunction to restrain and enjoin the defendant from crossing complainant’s right of way and tracks at said point where 19th Street crosses 10th Avenue, until the defendant is legally entitled to appropriate complainant’s said right of way according to law, and that on the final hearing said injunction be made perpetual, or retained until the defendant is legally entitled to cross said right of way by the condemnation thereof, or by an agreement with the complainant.
A temporary injunction was granted according to the prayer of the bill. The defendant interposed an answer, and demurrer to the bill, and also filed motions to dismiss the bill for want of equity, and to dissolve the injunction. The appeal is from a decree overruling the demurrer to the bill, the motion to dismiss, the bill for want of equity, and the motion to dissolve the injunction on the denials of the answer. The defendant’s answer, under the oath of the president, denies that complainant owns the right of way at the place where the two lines intersect, and alleges that the defendant owns the right of way on which complainant’s track is laid at that crossing, and is entitled to build thereon its additional track, 'and is not bound to pay complainant for the right to make the proposed crossing.
The contest as disclosed by the record is between two street
Furthermore, on the question of retaining or dissolving the injunction, regard should be had to the consequences of adopting the one course or the other. If the injunction is dissolved and the crossing is made in the manner proposed by the defendant, according to the averments of the bill, and thereafter it turns out that complainant was entitled to compensation as it now claims; still, it will have suffered no injury for which it will not have adequate redress at law. If, on the other hand, the injunction is retained, and it eventually turns out that the defendant fully sustains its claim of right to make
The stress of the arguments of counsel has been upon the question of retaining or dissolving the injunction! The assignments of error directed to the other features of the decree appealed from have not been sustained. That decree will be affirmed, except so far as it overrules the motion to dissolve the injunction; and a decree will be here rendered dissolving the injunction, and remanding the cause.
Reversed and rendered in part, and remanded;