130 Ala. 660 | Ala. | 1900
Complainant made application to the probate court for condemnation of a railroad right of way, across a railroad and right of way held by defendant under a lease. Damages were assessed by three commissioners. The amount assessed was paid into-the probate court and that court made an order of con
The statutes relative to eminent domain are dominated by constitutional provisions on the same subject of which the one particularly applicable is as follows : “Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured, or destroyed, by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction. The general assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers, or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to law.” Const. Art. XIY, § 7. The landowner’s right to have just compensation as a condition precedent to any taking of his property for public use has been declared in the foregoing and reiterated in other parts of the constitution in terms so clear as to need no interpretation. It is not disputed here. As the amount is of the essence of compensation, the mode of ascertaining what shall be deemed just is, so far as it is controlled by the constitution, 'an essential part of the guaranteed right of payment which no statute can infringe.
Complainant bases its claim to enter on sections 1719 and 1720 of the Code, the first of which directs that an order of condemnation be .made on payment of damages
As supporting our conclusion that the landowner in • this State is protected in 'his possession so long as he has not had or waived the right to have his compensation assessed by a jury of twelve men, see Postal Tel. Co. v. A. G. S. R. Co., 92 Ala. 331; Woodward I. Co. v. Cabaniss, 87 Ala. 328; M. & C. R. Co. v. Birmingham, etc. R. Co., 96 Ala. 571.
In the last cited case it was also well decided that section 21 of Article XIY of the constitution in declaring the right of railroads “to intersect, connect with, or cross any other railroad, does not authorize an invas
The bill is without equity. A decree will be 'here rendered, reversing the decree of the chancery court, dissolving the injunction issued therefrom, and dismissing the bill. Let the complainant pay the costs in this court and in- the chancery court.