Highland Avenue & Belt Railroad v. Birmingham Railway & Electric Co.

McCLELLAN,- J. This bill is filed by the Highland Avenue & Belt Bailroad Co. and the Columbian Equipment Co., for the purpose of enjoining the Birmingham Bailway & Electric Co. from constructing a railway and laying its track on and along Eleventh Avenue between Nineteenth and Twentieth Streets, in the city of Birmingham, and there crossing the tracks of said complainant railroad company. The equity of the bill is rested on the claim that complainants are the owners to the exclusion of the public of twenty-six feet of and along the middle of said street, that respondent has not compensated, nor offered to compensate, them for the use of the crossing it proposes to take, nor taken any steps to condemn the same; and also upon the aver-ments that said street is too narrow for the proposed track in addition to the two tracks ' of complainants already upon it, there being only from ten to twelve feet between complainants’ tracks and the curbing on either side, that if another track is put in said avenue it will prevent or render greatly dangerous the common use thereof by vehicles and the cars of both roads, &c. ; that the crossing is proposed to be made at a curve in com [243] plainants’ tracks, where also the grade of their tracks is a very steep one ; that these facts add to the danger of collisions, &c.; and that respondent can .easily reach the objective point of its proposed track by building on another feasible route which is only a block and a half longer than that now proposed and which would not intersect or cross complainants’ tracks at all, &c. Other facts supposed to impart, or to aid in imparting, equity to the bill are averred, but we deem it unnecessary to particularly refer to them here. An injunction issued on the filing of the bill, in accordance with its prayer. The respondent answered the bill denying all the aver-ments set forth above, as well as the other averments of the bill, except that it is admitted that the point of the proposed crossing is on a curve and a grade in complainants’ tracks, but alleges that said grade is not a steep, but a light one, and that the dangers apprehended by complainants because of such grade at the point of crossing will not ensue ; and except also that the answer virtually admits that the respondent could, by adopting the other route suggested in the bill, reach the objective point of the proposed track without crossing the complainants’ tracks, at all; but the answer avers that the increased length of such track would be two blocks, or about eight hundred and fifty feet. The answer was filed October 9, 1895. On November 9th following, respondent filed its motion to dissolve the injunction upon the grounds (1) the denials of the answer, and (2), that there is no equity in the bill. On the 22d of the same month, complainants served notice on the respondent that they would offer certain ex parte affidavits as evidence in support of the bill on the hearing of the motion to dissolve. The motion was heard, it seems, on January 24, 1896 ; or, at least the decree dissolving the injunction was then rendered. We have referred to these several dates to show that the affidavits were seasonably brought forward — in time for respondent to have filed counter affidavits — and that complainants submitted the motion on their part on the affidavits as well as the bill. The chancellor excluded these affidavits at the hearing. We think they should have been received. The affiants were men of familiar acquaintance with the locality of the proposed extension and crossing of respondent’s rail [244] way. Their testimony is to the effect that the existing tracks of complainants’ road, two in number, including the cross-ties, occupy all of Eleventh Avenue between Nineteenth and Twentieth Streets, from curb to curb, except a space of about twelve feet on one side and ten on the other; that if another track is put in said avenue it will effectually prevent or render extremely hazardous the common use of the avenue by wagons, carriages and other private vehicles, pedestrians and the cars of the two railroads ; that the danger of collision will be very great, and that in their judgment to put another track on said street would destroy its use for other purposes, &c. This evidence goes to show that the construction of the proposed track would be the creation of a public nuisance. It was to this end solely that the affidavits were offered, and for this purpose they are clearly admissible under the rule declared in Barnard v. Davis, 54 Ala. 565. These affidavits, in our opinion, sustain the averments of the bill in respect of the matters to which they relate, the denials of the answer to the contrary notwithstanding. Taking said averments as true, and looking to the fact averred in the bill and virtually admitted in the answer, that respondent has another feasible and practi-table route for its proposed track, of not much greater length, by the adoption of which all the dangers, inconveniences and obstruction to the existing road and to the public incident to the proposed route will be entirely avoided, it is clear to our minds that the injunction should not have been dissolved. On the state of facts we have set forth, complainants will be greatly damaged by the building of the proposed road, and the injury is not of a sort to be fully compensated for by any money recovery they might have of the respondent in the event the other averments of the bill are sustained at the final hearing : it is, in this sense, irreparable ; while, on the other hand, no great, and, certainly, no irreparable injury would result to the respondent by being forced — if its exigencies can not await the final determination of the case — to construct its line over the other route. If all right to the route now proposed be established on the final hearing, its remedy for the damages resulting from having, in consequence of the injunction, to build a slightly longer track, or from the delay in constructing this one, is plain, adequate and complete. [245] Upon these considerations the decree dissolving the injunction must be-reversed. A decree will be here entered overruling the motion to dissolve' and reinstating the injunction. Reversed and rendered.