Tombigbee Valley R. R. v. Loper, 63 So. 1006

Tombigbee Valley R. R. v. Loper

63 So. 1006 | Ala. | 1913

SOMERVILLE, J.

— 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*345cessor and privy in interest built and operated its line of railway upon and across said land, appropriating therefor a strip 100 feet in width; and that neither said original taker nor respondent, who purchased and succeeded to its rights in 1904 and has since possessed said right of way and operated said railway, has ever condemned or lawfully acquired same from complainant nor compensated him therefor, though he has demanded compensation. The prayer of the bill is that complainant’s compensation and consequential damage be ascertained and awarded to him, and that in default of its payment respondent be enjoined from operating its railway over said land until payment shall be made.

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.

*346Tbe objection to tbe bill that it is contradictory in its •allegations of possession is too technical to be meritorious. Wbat tbe bill clearly means and charges is that complainant has bad possession of tbe tract of land described, except as qualified by tbe partial possession imputed to respondent.

Tbe demurrer to tbe bill was properly overruled, and tbe decree of tbe chancellor will be affirmed.

Affirmed.

. Dowdell, C. J., and McClellan and Sayre, JJ., concur.