Louisville & Nashville Railroad v. Peoples Street Railway & Improvement Co.

McCLELLAN, J. The act of December 10, 1886, conferred upon street railroad companies the “right to condemn and take possession of” land, not exceeding a strip or tract thirty feet in width, for the right of way of such railroads, “on payment to the owner thereof a just compensation, in the same manner as now provided by law for taking private property for railroads and other public uses, in Article II, Chapter 17, Title 2, Part 3 of the Code” of 1876. — Acts 1886-7, p. 122. This act was amended by the act of February 26, 1889, which provides : ‘ ‘That all street railroad companies * * * * organized and incorporated under the laws of Alabama * * * * * may acquire by gift, purchase or condemnation real estate in this State for the right of way for street railroads a strip, tract or parcel of land not exceeding thirty feet in width for the right of way of said street railroads, and said street railroad companies shall have the right to condemn and take possession of said land on payment to the owner thereof a just compensation, in the same manner as now provided by law for the condemnation of land for public uses in Article II, [332] Chapter 15, Title 2, Part 3 of the Code” of 1886. Under this last statute and the article of the Code which is made (or possibly only attempted to be made, Bay Shell Road Co. v. O’Donnell, 87 Ala. 875, 6 So. Rep. 119,) a part of it, the Peoples Street Railway and Improvement Company proceeded in the probate court of Morgan county to condemn a right of way along a street of the town of New Decatur over the right of way, road-bed and tracks of the South and North Alabama Railroad Company, which railroad was in the possession of and being operated by the Louisville & Nashville Railroad Company, and from a decree or order of the judge of probate granting the petition to that end, and condemning said right of way, the two last named corporations appeal to this court. We need not go into the merits of the case thus intended to be presented for our consideration further than to say that we find no authorization in the act last quoted, or in the chapter of the Code made a part of it, for the condemnation of the right of way of one railroad company , a public corporation, for a light of way for a street railway companj'-, also a public corporation ; and it has quite recently been held by this court that in the absence of special statutory authority such condemnation can not be had. — Memphis & Charleston Railroad Company v. Birmingham, Sheffield and Tennessee River Railroad Company, 96 Ala. 571, 11 So. Rep. 642. But we are not required to decide that question, nor indeed would it be proper for us to go further than is implied from what we have said, for the reason that this case is not jurisdictionally before us. No appeal lies directly to this court from any proceeding, judgment, order or decree of the probate court had, entered or made therein under the provisions of Article II, Chapter 15, Title 2, Part 3 of the Code, under which this proceeding was had in the probate court of Morgan county. Postal Telegraph Cable Co. v. Alabama Great Southen Railroad Company, 92 Ala. 331, 9 So. Rep. 555. This appeal must, therefore, be dismissed; and this though no motion to that end has been made, since, being without jurisdiction in the premises, no waiver of the point, implied or even expressed, can confer upon us the power to hear and determine the cause. Appeal dismissed.