Southern Railway Co. v. Birmingham, Selma & New Orleans Railway Co. , 131 Ala. 663 ( 1901 )

McCLELLAN, C. J.

The appeal by the Southern Railway Company from the order of the probate court made under section 1717 of the Code granting the application of the Birmingham, Selma &' New Orleans Railway Company to condemn a right of way for the tracks of the latter company across the tracks and right of way of the former company, having been taken under said section within thirty days and before an order of condemnation on the assessment of damages by the ■commissioners was entered under section 1720 of the Code,' was properly taken to this court; and the effect of it was to remove such preliminary order granting said application out of the probate court and into this court, to entirely suspend such order and to leave nothing in the probate, ’court upon which the subsequent proceeding to condemnation on the report of the commissioners could be based: The probate court, in other words, was wholly without power or jurisdiction to proceed further1 in the premises, and the order of condemnation made on the 5th day of September, 1900, is absolutely void and of no efficacy for any purpose. — Birmingham Railway & Electric Co. v. Birmingham Traction Co., 128 Ala. 110. It follows that neither the order of condmnateion entered in the probate court on the assessment of damages reported by the commissioners under section 1720 of the Code, nor the payment into court of the amount so assessed us compensation to be paid by the applicant conferred any rights whatever upon said applicant, the Birmingham, Selma & New Orleans Railway Company, in the premises, and that.in going upon the right of way of the Southern Railway Company and constructing a track across the tracks of the latter company, the former was a trespasser, occupying precisely the same, attitude and subject to- precisely the same remedies as if it had undertaken to appropriate a right of way over said right of way and tracks of the complainant without any proceeding to condemn the same or the payment or attempted payment in any way of the compensation therefor. On this state of case, the present bill has equity to prevent further obstruction of complainant’s right of way and tracks and to abate and remove the obstructions already placed thereon, whether the injury done or threatened and complained of is or will be irreparable or not, whether respondent is solvent or not, and without reference to the comparative injury to result from maintaining the injunction; these considerations having no pertinency or force as against the constitutional provision that in no case shall ■property be taken under the right of eminent domain unless compensation is first paid to- the owner. — East & West Railroad Co. v. East Tenn., Va. & Ga. R. R. Co., 75 Ala. 275, 280-81; City Council of Montgomery v. Lemle, 121 Ala. 609.

Not lias the complainant any remedy at law in the premises for its protection from the acts of t-lie respondent complained of to which it should resort instead of proceeding as it has here proceeded by bill in chancery for injunctive relief. The probate court is not proceeding to the assessment of compensation, and hence there is no remedy by prohibition. It has already proceeded to such assessment and condemnation thereon, and there being nothing further for it to do or order in the matter, the writ of prohibition would be vain and nugatory; there is no threatened or contemplated or even possible action to be prohibited. This case is, therefore, wholly unlike that of Birmingham Railway & Electric Co. v. Birmingham Traction Co., 121 Ala. 475, and the latter is not an authority for the denial of a remedy by injunction in the present case on the ground that complainant had an adequate remedy at law. There the probate court was about to proceed to a final condemnation after appeal from the preliminary order, and all of the complaining parties’ rights could have been fully conserved by prohibiting that proceeding pending the appeal. Here, as we have said, there is no proceeding being taken or threatened in the probate court to be prohibited. There it was for the probate court to determine its own jurisdiction to proceed, and non constat but that it would determine that question correctly and decline to pr oceed further; and, of consequence, the chancery court had no power or jurisdiction to determine the question of jurisdiction for the probate court in anticipation of an erroneous solution of it by the probate court. Here the probate court has finally determined that it had jurisdiction to go on to final condemnation on the assessment of the commissioners, the pendency of the appeal to the contrary notwithstanding, and accordingly has appointed the assessors, received their report and thereon entered up the final order of condemnation; and this though such determination was erroneous, and in consequence all its acts, orders and decrees in line with it are cor am non judice.snid void. But it is under this void proceeding and order and under it alone that respondent claims the right and is proceeding to exercise the right to construct its track across the right of way and tracks of the complainant. The writ of 'prohibition does not run to individuals, to litigants, but to courts only. It cannot go to the probate court in this instance because that court is doing nothing nor proposing to do anything, and the writ issued to it would be abortive. The unlawful thing being done or proposed to be done is not being clone or proposed to be done by the court, but by the (respondent; and if the complainant has any preventive remedy it is by injunction against the respondent. That it has a remedy to prevent the taking of its property by the respondent before the latter has paid just compensation therefor, determinable as to amount by a common law jury if complainant demands such determination, is clear upon the authorities cited above; and it is a remedy which this court is bound to effectuate in conservation of the organic provisions that “private property shall not. be taken or applied for public use, unless just compensation be first made therefor”; that “the General Assembly may, by law, secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall in all cases be first made to the owner.” (Const., Art. I, § 24) ; and that “municipal and other corporations and individuals invested with the right 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.” (Const., Art. XIV, §'7).

It is upon the foregoing considerations and authorities that, we rest our conclusion that the bill contains equity and that the injunction was properly issued in the first instance in accordance with its prayer. The order of the chancellor modifying the injunction was erroneous. That order will be here' reversed and annulled, and the motion to dissolve, the injunction upon which that order was made will be overruled and denied, and the original injunction will be reinstated.

Therefore, on the appeaí of the Southern Railway Oo. the decree will be reversed and a decree will be here rendered, and on the appeal of the Birmingham, Selma & New Orleans Railway Oo. there will be an affirmance.