63 So. 1006 | Ala. | 1913
— The bill of complaint, as amended, shows that complainant became the owner of a certain 40-acre tract of land in 1895, of which he has since been in possesion, and that in 1902 respondent’s prede
It is fully settled in this state that when land is taken and appropriated by a railroad company without grant or condemnation according to law, whether such taking is with or without the knowledge and acquiescence of the owner, the owner may maintain his bill in equity for the ascertainment and recovery of appropriate damages ; and that the decree therefor may be made effectual by writ of injunction if necessary. — Thornton v. S. & B. R. R. Co., 84 Ala. 109, 4 South. 197, 5 Am. St. Rep. 337; Cowan v. Southern Ry. Co., 118 Ala. 554, 23 South. 754; Southern Ry. Co. v. Hood, 126 Ala. 312, 318, 28 South. 662, 85 Am. St. Rep. 32; Birmingham Belt Ry. Co. v. Lockwood, 150 Ala. 610, 617, 43 South. 819. This jurisdiction of courts of chancery is not founded merely on the inadequacy of legal remedies but primarily upon their power to protect the owner of land in the enjoy-' ment of his constitutional rights in the premises. The only effect of the owner’s acquiescence in such taking is to estop him from, ousting the railroad company by ejectment if the latter is then willing to make just compensation. — Southern Ry. Co. v. Hood, 126 Ala. 312, 316, 28 South. 662, 85 Am. St. Rep. 32.
Tbe demurrer to tbe bill was properly overruled, and tbe decree of tbe chancellor will be affirmed.
Affirmed.