Cooper v. Anniston & Atlantic Railroad , 85 Ala. 106 ( 1887 )

STONE, O. J.

If any errors of law were committed in the condemnation proceedings alleged to have been had in this case, they should have been taken advantage of before the probate judge, or on the appeal to the Circuit Court, if they had not been waived by the course pursued in the primary trial. Such errors furnish no ground whatever for equitable interference. — Mills Em. Dom.,§ 323; Ewing v. City of St. Louis, 5 Wall. 413; Secombe v. Railroad Co., 23 Wall. 108.

Nor is there any thing in the objection, that having once obtained a right of way, the railroad company is bound to adhere to it, and can not proceed for a further condemnation. The power -is continuous, and co-extensive with the wants of the corporation. It should be a clear case of abuse, to justify withholding relief, on the ground that the easement asked for is not necessary to the successful operation of the railroad. — 1 Rorer on Railroads, 274 et seq.; Chic., B. & Q. Co. v. Wilson, 17 Ill. 123; Fisher v. Chic. & S. R. R. Co., 104 Ill. 323; Smith v. Chic. & W. Ind. R. R. Co., 105 Ill. 511; Miss. & Tenn. R. R. Co. v. Devaney, 42 Miss. 555; C. B. M. Pac. R. R. Co. v. T. & S. F. R. R. Co., 26 Kans. 669; V. & T. R. R. Co. v. Lovejoy, 8 Nev. 100.

The amended bill charges, that the railroad company is insolvent, and will not be able to meet and pay the increased damages, should such be awarded in the Circuit Court, to which the case has been appealed. The land-holder, complainant in this bill, has ample means for enforcing any damages he may recover. He has a lien, in the nature of that of a vendor, on the property taken, enhanced in value by the improvements to be put upon it; and if the payment be withheld, the Chancery Court, by a restraining order, may compel payment as a condition of further enjoyment of the easement. — Hooper v. S. & M. R. R. Co., 69 Ala. 529; N. O. & S. Railway Co. v. Jones, 68 Ala. 48; s. c., 70 Ala. 227; Thornton v. Shef. & Birm. R. R. Co., 84 Ala. 109.

The case of Browning v. Cam. & W. R. R. Co., 4 N. J. E. 47, was, in its facts, very like the present one; and an injunction was awarded in that case. The ruling, however, was put on the ground, that under their system, the appeal suspended and superseded the judgment of condemnation, and with, it the judgment in favor of the land-holder for the assessed damages. Our statute is entirely different. — Code of 1876, § 1839. If the railroad company deposits with the probate judge the amount of the award, and the costs of- the commission, the appeal in no wise hinders or impedes work on the condemned property. The deposit was made in this case.

The present bill is without equity, and the injunction was rightly dissolved.

Affirmed.