Jones v. Nashville, Chattanooga & St. Louis Ry.

141 Ala. 388 | Ala. | 1904

IIARALSON, J.

The Nashville, Chattanooga & St. Louis Railway Company, filed its bill against the defendants, to prevent interference with the employes of the company in removing defendant’s fences from their land and constructing a side track for the use of the company..

Defendants filed a. demurrer on specified grounds, going to thei equity of the bill, moved to dismiss for want of equity, and to dissolve the temporary injunction issued in the cause. From a decree overruling the demurrer the appeal is prosecuted.

The1 right of the complainant is rested solely on the terms of Section 25 of its Tennessee charter, passed on the 11th of December, 1845, and on an act of the General Assembly of Alabama, approved January 21, 1850, (Acts of 1849-50, p. 171). The bill sets out in full said section 25 of the charter of said company in Tennessee, when — in the absence of any contract with the said charter, which section is> as follows: “Section 25. In the absence of contract, right of way one: hundred feet, when — In the absence of any contract with the. said company in relation to land through which the said road may pass, signed by the owner thereof, or by his agent or any claimant or person in possession thereof, w.liich may be conferred by tbe owner, it shall be pre-snmed that the land upon which the said road may he !, constructed, together with a space of one hundred feet 7 on each side of the center1 of said road, has been granted '/ to the company by the owner thereof, and the company,(' shall have: a good right, and title thereto, and shall have, • hold and enjoy the same as long as the same may be used only for the purpose of the road, and no longer, unless the person or persons owning the said land at the time that paid- of the road which may be on said land was finished, or those claiming under him, her or them A shall apply for an assessment for the value of said. f/ lands, as hereinbefore directed, within five years next after that paid of said road was finished, he, she or they shall be forever barred from recovering the said land,// or having any assessment of compensation therefor;' provided, nothing herein contained shall effect the right of feme- covert or infants until two years after the removal of their respective disabilities.”

No part of the Alabama act is set out except the following : “Section 1. Be it enacted by the Senate and House of Bepresmtatives of the State of Alabama, in General Assembly convened, That the Nashville & Chattanooga Bailroad Company he, and they are hereby authorized to construct their road through the northern portion of Jackson county, in this State, and they shall have and enjoy all the rights, privileges and immunities, and be subject to such restrictions, as are granted to and are imposed upon said compnay by the, act incorporating the same, as far as said railroad lies in the county of Jackson,” etc. •

Section 10, Art. 1, of the Constitution of this State, 1819, provides that no person “shall he deprived of his’ life, liberty or property, hut by due: process of law.” In the constitutions of nearly all the States, and in the Constitution of the United States, are found provisions j in relation to eminent domain. These provisions re- i quire: that private property shall1 not betaken for public use without just compensation. But such constitutional guarantees, are but the affirmance of the same great doctrine of the common law for the protection of private property. “It is founded in natural equity and is laid down by jurists as a principle; of universal law. Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over tbei private fortunes of every citizen.” — Davidson v. New Orleans, 96 U. S. 97; Chicago & S. R. Co. v. Chicago, 166 U. S. 226, and many authorities there cited.

“In Searl v. School District, 138 U. S. 553, 562, and in Street v. Rechel, 159 U. S. 380, 398, the court said that it was a condition precedent to the exercise of the power of eminent domain, that the statute makes provision for1 reasonable compensation to the owner.”

“In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they surround it with safeguards to prevent abuse. The restraints are, that when private property is taken, a pecuniary compensation, agreed upon or determined by judicial inquiry must be paid.” — Cooley’s Const. Lim. pp. 356, 357.

“Due process of law requires, first, the legislative act authorizing the appropriation, pointing out how it maybe made and how the compensation shall be assessed; and second, that the parties or officers proceeding to make the appropriation shall keep, within the authority conferred, and observe every regulation which the act makes for the protection of the interest of the property owner, except as he may see fit to waive therein.” — 2 Story’s Const. § 1956; Chicago B. & I. R. Co. v. City of Chicago, 166 U. S. 241; 10 Am. & Eng. Ency. Law, (2d ed.) 1050.

In Sadler v. Langham, 34 Ala. 331, it was said: “We do not now decide whether the compensation must be paid before the act of taking or condemning private property is perfected.. * * * Still we would think that legislation unguarded, which, at the instance of a. private applicant, divested out of the citizen the title to his .lands, or to a permanent, easement therein, until compensation had been actually paid to him.” Many authorities are cited to sustain the principle.

The case we have, is to be decided not by the Constitution and laws of Tennessee, whatever they may be, but by. the laws of Alabama. Oases from the Tennessee court are cited in construction of a similar section in a ('barter, which sustain the provisions of the charter of this company touching the right of the railroad to the land taken. What the other provisions of the charter besides said section 25 are, we have not been informed. As to the act of the Legislature of Alabama, above, referred to, respecting the grant of the right of way of said railroad through Jackson county, and providing “that they shall have and enjoy all the rights, privileges and immunities and be subject to such restrictions as are granted to and imposed upon said company by the act (of the Tennessee Legislature) incorporating the same, as far as said railroad lies in the county of Jackson;” it is to be observed; that- the act did not grant the right of way through lands in this. State, but remitted the owner of land in thisi State through which said road might run, to the rights, privileges and remedies of owners of land similarly situated in a foreign State and as provided in a charter granted in that State, not set out in the Alabama statute. In other words, the provisions of a charter in another State not made known, of which the citizens of this State had no notice, and probably not applicable to our institutions are: sought, by said Alabama statute, to be transferred and incorporated therein by mere reference. Such statutes do not transfer the law of one State: to the other, nor displace the local law, except as otherwise provided. — 1 Thompson Law of Corporations, § 321.

The Alabama act in its attempt to re-enact the provisions of the Tennessee charter, sets forth no measure of procedure, and none is shown by the bill, Avliereby owners of land, through which the road was to pass might obtain just compensation for their property taken.

It in effect authorizes the. railroad, without the authority or consent of the owner, to go upon and appropriate his land, and if any complaint or protest is made, to say to him, — “If you do not like the course T am pursuing, make me pay for tlie land taken, if you can, but if you seek to do so, you must begin within five years after I have finished my road, or you shall not have anything.” If the owner does not seek compensation, in five years after "the road is finished over his land, the presumtion is authorized to he indulged that he granted the land to the company, and is therefore barred to claim anything. Thisi is a statute: of limitations of five years after the action accrued against the prosecution of suits for damages in such oases. It is not to be denied, that the legislature was competent to pass such a law, and reduce the: limitation from ten to five years. But it does not appear from, the bill, that it was the intention of the Legislature of this State, to adopt the statute of the State of Tennessee as to any particular proceeding for the ascertainment of compensation for the land taken, without’which the statute of limitations of five years as there created is not applicable here.

The railroad bed and track had been in the undisturbed possession of the railroad company since the road was built, sionie 45 or 50 years ago> and outside the space thus occupied, the owners of the land have been in the undisputed and unquestioned possession and occupancy. Tiliis litigation does not have reference to the road bed and track, but relates alone to the land on each side thereof, within one hundred feet of the center of the track. The company until now, have never sought to disturb the owners, and have made no claim to the land occupied by them. Now they propose to take it for railroad purposes, without paying anything for it, claiming that respondents have no right to' interfere. The chancellor, so ruled, overruling the demurrer tO' the bill, the motion to dismiss for ivant of equity and to dissolve the injunction.

The decree of the lower court is! reversed and a decree will be: here rendered dissolving the injunction and dismissing the bill.

Reversed and rendered.

McClellan, C. J., Dowdell and Denson, J. J., concurring.