Alabama City v. Alabama Power Co.

- SOMERVILLE, J. Under the authority of City of Decatur v. Southern R. Co., 183 Ala. 531, 62 So. 855, 48 L. R. A. (N. S.) 231, and 187 Ala. 364, 65 So. 536, we are constrained to hold that the demurrers to the bill of complaint were properly overruled, and that there is equity in the bill as to its prayer for the removal of the cloud on complainant’s title, caused by the assessment for *646 paving improvements, as shown by the bill. In the City of Decatur Cases, supra, it was held (1) that an assessment for street improvement against a small portion of the right of way of a railroad company, engaged in the discharge of its functions as a public service corporation, as a going concern, cannot be enforced by a sale of that portion of the right of way; and (2) that, since there can be no personal judgment in such a case, the statutory remedy for collection in rem being exclusive, the special assessment was unenforceable, and amounted to nothing but a cloud on the title of the railroad, for the removal of which the bill in equity was maintainable. Counsel for appellants recognize the force and effect of those decisions, but insist that they are not applicable to the case made by the instant bill, because (1) the bill shows that complainant has a right of way 25 feet wide, with about 9 feet on each side of its track, which could be sold without interfering with complainant’s business or with the exercise of its franchise; and (2) in the Decatur Cases a section of the right of way had been actually levied upon and advertised for sale. As to the latter distinction, it is clearly immaterial to the equity of the bill, since the assessment made by the city against complainant’s right of way creates and fastens a cloud upon its title just as.effectually and injuriously as would any subsequent step taken for its enforcement, by advertisement or otherwise. As to the first objection, the Decatur Cases do not excépt from the operation of the rule declared any part of the railroad’s right of way, and, moreover, the case made by the bill is against an assessment imposed indiscriminately upon defendant’s right of way, which of necessity includes the roadbed and track. The suggested distinctions do not suffice to relieve this case from the controlling influence of the Decatur Cases, supra, and the decree of the trial court overruling the demurrers will be affirmed. It may be noted that the right of the municipality to assess against the railroad the cost of street paving laid between its rails, and 18 inches on either side (section 2189, Code 1923), has been recently upheld by this court in the case of Ala. Traction Co. v. Selma Tr. & Sav. Bank (Ala. Sup.) 104 So. 517. 1 But .under that statute the paving cost is made a personal obligation of the railroad, secured by a blanket lien on its entire property. Ala. Traction Co. v. Selma Tr. & Sav. Bank (Ala. Sup.) 104 So. 517 (12), supra, i But that, statute and that decision have no application to this case. Affirmed. ANDERSON, C. X, and THOMAS and BOULDIN, JX, concur. Footnotes [1] Ante, p. 269.