State v. Simons , 145 Ala. 95 ( 1906 )

DOWDELL, J.

The appellee was arrested and imprisoned on a charge of trespass after Avarning, and on a writ of habeas corpus was discharged from such imprisonment. From the order or judgment- discharging the appellee, the state pro-secutes this appeal.

The judge of the county court of Tuscaloosa, before whom the proceedings on habeas corpus were had, adjourned the hearing from the 27th day of October to- the 30th, during which time lie admitted the appellee, to hail. This the judge Avas authorized to do, under section 4832 of the Code of 1896.

The offense of trespass after warning is a statutory offense. Code 1896 § 5606. The statute provides that “any person, who, without legal cause or good excuse, enters into the dwelling house, or on the premises of an-othei*, after having been* warned, within six months preceding, not to do so,” etc. If a legal cause or good excuse exists for entering on the premises, certainly the statute is not violated. There can he no: doubt that it is within legislative competency to say what shall constitute a “legal cause or good excuse.” The undisyrated evidence showed that the .appellee, Simons* was a. civil engineer in the employment of the. Pensacola, Alabama & Western Railway Company of Alabama, a corporation organized under the general statutes approved October 2, 1903, (Gen. Acts 1903, p. 310), and as such under the directions of said company entered upon the premises in question solely for the purpose of making a preliminary survey of the proposed route or line of railway of said railway company. Section 9, p. 320, of the above act, for the purpose mentioned, authorizes an entry upon the premises of another’, “hut subject to liability for all damages done thereto.” This authorization of the statute furnished to the .appellee, in entering upon the premises for the purpose of making an examination and survey of the proposed line of railroad, “a legal cause and good excuse” as against a criminal prosecution under the statute. Code 1896, § 5606, for trespass after warning.

The entering upon the premises for the purposes of “examinations and surveys of their proposed railroad or lines, as may he necessary to the selection of the most advantageous routes,” is purely of a temporary nature, and in no proper sense'a taking of the property, .and consequently not a violation of the constitutional provision wliicli requires that just compensation shall first be paid before property is condemned and taken for railroad purposes. The act in question does not undertake to deprive the owner of tlu> premises of any right of action for any damage he may sustain by reason of such entry, but, on the contrary, expressly provides that, it shall be subject to liability for all damages done thereto”; that is, to tin-lands so entered upon. 1

We are unable to discover any class legislation in section 9 of .said act, such as is condemned by our Constitution, and such contention is without merit.

We find no error in the proceedings had before the judge of the county court, and the order appealed from will be affirmed.

Affirmed.

Weakley, O. L, and Haralson and Denson, JJ., concur.