44 So. 471 | Ala. | 1907
The bill in this case was filed by the appellee against the appellants, alleging that the appellants and their predecessors had constructed and were operating a railroad over the lands of the appellee without having condemned the right of way or compensated the owner therefor, and praying that the defendants be enjoined from operating said railroad or using said land “until it has first been legally condemned or appropriated to the use of the said defendants, as provided by the Constitution and the laws of Alabama, and until just compensation has been made therefor to this complainant.” A preliminary injunction was granted, after which an answer was filed, and a motion made to dissolve the preliminary injunction, which motion was overruled; and this appeal is from the decree overruling said motion.
The sworn answer of the Union Naval Stores Company admits the construction and operation of said railroad by their predecessors and themselves, but denies that the complainant has been the owner of the land in question since December 28, 1905, and alleges, on the contrary, that complainant never acquired any interest in said land until after said railroad was built and in operation; that respondent does not know whether complainant company is the owner of the land at all, and requires proof thereof. It alleges the facts to be that the land in question was previously owned by Mann, Watson
It is settled in this state that a railroad company,, which has appropriated lands for a right of way without condemnation or payment therefor, may be enjoined from operating its road until condemnation and payment.^ — Thornton v. Sheffield & Birmingham R. R. Co 84 Ala. 109, 114, 4 South. 197, 5 Am. St. Rep. 387; Southern Ry. Co. v. Hood, et al., 126 Ala. 313, 28 South. 662, 85 Am, St. Rep. 32; Cowan v. Southern Ry. Co., 118 Ala. 554, 561, 23 South. 754. It is also settled that, when a right of way is so taken, the right to compensation for damages accrues at once to the owner of the land taken, and does not pass to a subsequent purchaser of the land. —Lewis on Eminent Domain (2d Ed.) § 653b; Mills on Eminent Domain, § 66; Elliott on R. R. p. 1449, § 1000; Birmingham Belt R. R. Co. v. Lockwood, 150 Ala. 610, 43 South. 819, and cases cited. It will be noticed that the answer in this case not only denies the ownership of the complainant at the time of the taking of the right of way, but also goes into details as to the organization of the various corporations which have owned said lands and built .said railroad, which facts, if true, show that the railroad was at least built with the consent of the then owner of the land, and that, if any one is entitled to compensation for said right of way, it is not this complainant. It will be noticed, also, that there is no allegation in the bill of insolvency of defendants, and, on the contrary, that the answer states they are perfectly solvent, and that, while the continuance of the preliminary injunction Avould work irreparable injury to the respondents, the interests of the complainant would not be at all
The decree of the chancellor will be here modified, so as to provide that upon the execution by the respondents of a sufficient bond, to be approved by the chancellor (!who will fix the amount), to secure the payment of such damages as may be finally adjudged against respondents, the injunction will be dissolved. The costs of
Modified and affirmed.