Mobile & Girard Railroad v. Ala. Midland Railway Co. , 87 Ala. 520 ( 1888 )

CLOPTON, J.

Every question raised by the present bill is purely a legal question, and, according to the averments o£ the bill, an appeal to this court was pending, which was intended to bring, and did bring, each of these questions before us for review. The case of Cooper v. Anniston & Atlantic R. R. Co., 85 Ala. 106, was very like the present one, except that in that case it was charged that the defendant railroad company was .insolvent. That charge is not made in this case. We pronounced that bill wanting in equity, and for a stronger reason, if possible, the present bill is without merit. The injunction was rightly dissolved, for want of equity in the bill.—A. & C. R. R. Co. v. G. & A. R. R. Co., 82 Ala. 297.

The case of Cooper v. A. & A. R. R. Co., supra, arose under our former statute, Code of 1876, § 3593. That section provided, that “No appeal shall, during the pendency of it, prevent or hinder the petitioner from occupying the lands involved therein, and proceeding to work thereon”; with a proviso, or condition, which was complied with in this case. The Code provision, copied above, is not found in the Code of 1886. In the absence of that statutory provision, paying or depositing the condemnation money does not authorize the petitioner, while the appeal is pending, to occupy the land, or work upon it. The acts, then, charged against the Midland Railway Company, and complained of, are a naked trespass on the possession and right of the Mobile & Girard Railroad Company, with no facts averred tending to show that the injury inflicted, or threatened, would work an irreparable injury. Of such trespass equity has no juridiction.—Boulo v. Railroad, 55 Ala. 480.

The complainants, in their bill, show sufficient title and possession to maintain an action at law.—T. & C. R. R. Co. v. E. A. Railway Co., 75 Ala. 516.

In the case of Anniston & Cin. R. R. Co. v. Jacksonville & A. R. R. Co., 82 Ala. 297, we said: “The Probate Court has no jurisdiction to condemn the road-bed of one incorporated railroad company, for the use of another.” What is meant by the term “road-bed”, is fully shown in the opinion. Speaking of Davis’ Gap, the subject of contention in that case, our language was: “It is no where shown that the respondent railroad company can not obtain room for its track over complainant’s right of way, without obstructing complainant’s free and ample use of the same. If such is the case, the Probate Court has jurisdiction to condemn so much thereof as is necessary for defendant’s road-bed.” Roadbed is here used as the synonym of the road’s track — the track in use, or intended to be used, on which to operate its trains — and must include a sufficient space on either side, to allow trains to pass each other in safety. It was used in the same sense in E. & W. R. R. Co. v. E. T., Va. & Ga. R. R. Co., 75 Ala. 275, 282. It was not intended to include, necessarily, the whole embankment which supports the track; for that, in cases of high embankments, would be required to be very broad at the base, to furnish the requisite lateral support. The real intention wasj that the track or tracks of one -railroad that were in use, together with sufficient space for their safe use, could not be condemned by another railroad company for its use; or, what is the same thing, that that part of a railroad company’s right of way which was in actual use, and necessary for such actual use, could not be taken from it, and given to another railroad company, thus destroying, or greatly obstructing, all that was useful in one corporate franchise, and vesting it in another corporation. The legislature had not conferred this power and jurisdiction, we said. On the other hand, if a second condemnation can be so carved out of a right of way previously granted to another railroad company, as to leave the latter’s track without such hindrance or obstruction as to render its use unsafe, or materially obstructed, then the Probate Court has jurisdiction to order the condemnation, and the Chancery Court is without jurisdiction to interfere with it. And -in condemning a part of the right of way of an older corporation, previous excavations or embankments do not, as such, enter into the question of jurisdiction. That is not the road-bed or track (we use them convertibly) which the legislature has given no power to take. The inquiry is, whether the new condemnation can be made, without destroying the use and usefulness of that ¡Dart of the first acquired right of way which is in actual use, or so obstructing, hindering or embarrassing it as to render it unsafe. Bo long as there is no attempt to appropriate or destroy that part of another corporation’s right of way which is in actual use, or to so obstruct or impair it as to render it unsafe, or to materially embarrass its use, the jurisdiction of the Probate Court is ample, and, in the first instance, exclusive.

We have not given the authorities which support our views. They are cited in our own decisions referred to in this opinion.

Provision is made in Art. XIY, § 21, of our constitution, securing to a railroad corporation the right to “intersect, connect with, or cross any other railroad.” And the statute (Code of 1886, § 1582) has provided the mode of enforcing this right.

Affirmed.