Carter v. Marshall Electric Co. ( 1922 )

We do not think the trial court erred when he dismissed appellants from the suit as he did. The suit was a statutory one to condemn and take land on which a part of West Crockett street was laid out. The only proper parties to it, other than the traction company and the city, were persons who owned an interest in that particular piece of land (articles 1283a, 1283c, 1283d 6504, Vernon's Statutes; 20 C.J. 119; Selectmen of Norwood v. New York N.E. R. Co., 161 Mass. 259, 37 N.E. 199; Ry. Co. v. Karcher, 112 Ala. 676, 21 So. 825; In re St. Paul N. P. Ry. Co.,34 Minn. 227, 25 N.W. 345; Henderson v. City of Lexington [Ky.]111 S.W. 318, 22 L.R.A. [N. S.] 20; State v. Seehorn, 246 Mo. 568,151 S.W. 724), and it did not appear from the allegations in the petition by which appellants sought to intervene in the suit that they were such persons. The fact, as alleged, that appellants owned property "in the vicinity" of or "in close proximity" to said part of West Crockett street did not show an interest in them in the land the traction company sought to take; nor did the fact, as alleged, that one of them owned property which abutted on another part of said street show such an interest in him. Ry. Co. v. Karcher, 112 Ala. 676, 21 So. 825; Selectmen of Norwood v. New York N.E. R. Co., 161 Mass. 259,37 N.E. 199. Those allegations, at most, showed only that, if the land in question was taken by the traction company, appellants would be deprived in common with the public generally of a right they had to use it for street purposes, and they possessed that right subject to the power conferred upon the city commissioners to alter, vacate, close, and regulate the use, etc., of streets within the city limits. Charter of the City of Marshall, § 231; Special Laws 1909, p. 78. Neither appellants nor the courts at their instance had a right to interfere with the exercise by said commissioners of power the Legislature so conferred upon them; certainly not in the absence of facts showing fraud on their part in the exercise thereof. 2 Abbott on Mun. Corp. § 570.

The fact, as alleged, that appellants' property would be "specially damaged" by the closing of the part of the street in question might entitle them to maintain a suit for such damages when same accrued, but it was not a reason why the court should have permitted them to be heard in the condemnation proceedings. If power to close the street and permit the traction company to use the land as proposed existed, exercise of the power could not be stayed because injury to appellants would result therefrom. If such power did not exist, right to use the street as proposed could not be conferred upon the traction company. If it could not, then appellants had no right to be heard in the condemnation proceedings, for no right they possessed could be prejudiced by any action had in those proceedings.

The judgment is affirmed.