Southern Railway Co. v. Hood

II All ALSO F, J. Article I, section 24 of tlie State constitution provides that “private property shall not he taken or applied for public use, unless just compensation be first made therefore; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner; provided, however, that the general assembly may, by law, secure to 'persons or corporations the right ■of way over the lands of other persons or corporations, .and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; bpt just compensation shall, in all cases, be first made to the owner.” Article XIY, section 7, again, on the same subject, provides that “municipal and other • corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured or destroyed by the ■construction or enlargement of its works, highways or improvements, which compensation shall be paid before •such taking, injury or destruction.” Agreeably with the provisions of the constitution on the subject, the General Assembly long ago enacted legislation for the condemnation of the lands of another by a “corporation organized under the laws of this State, or any person, or association of persons, proposing to take lands, or to acquire an interest, -or easement therein, for any uses, for which private property may be taken.”—Code, § 1.712 et seq. The corporation, person or persons proposing to take the lands of another for such uses, must become the mover or movers in any condemnation proceeding thus authorized. No provision is made for the owner of the land to initiate any such [316] proceeding; and at law lie -cannot compel the payment of compensation for his property before it is taken injured or destroyed. Falling back upon his constitutional rights, however, if his property has been taken, injured or destroyed, without his -consent, he may treat the intruder as a trespasser, and bring an action of trespass or an action of ejectment against him, or enjoin him by bill in equity from such unlawful interference, until just compensation has been ascertained and paid. Jones v. N. O. & S. R. R. Co. & Imp. Asso., 70 Ala. 227; s. c., 68 Ala. 48; H. A. & B. R. R. Co. v. Matthews, 99 Ala. 27. Discussing the same principle in another connection we held that “whenever any person, corporation, or authority, vested with'the power of eminent domain, undertakes to exercise such power, by appropriating private property to its own use or benefit, without first complying with the constitution, a court of equity has jurisdiction to enjoin such undertaking, until compensation lias been first paid to the owner, his title or interest being admitted, or clear, and that, without regard to any questions -of irreparable injury.”—B. T. Co. v. B. R. & E. Co., 119 Ala. 129; s. c. 119 Ala. 137. These well recognized principles are in no sense qualified or shaded by that other doctrine so well settled in this court, and in ethers, that while a railroad company has no right to enter upon and take possession of the lands of another,—without his consent or without having made, just compensation therefor in proceedings for the condemnation of the laud,—does enter and construct its track thereon, and the owner has knowledge that the company is proceeding to locate1 and construct its road op liis land, and allows him to do so, and allows him to expend large sums of money on improvements for such purpose, he will be estopped from ousting the company by ejectment, if the company is willing to then make just compensation, such as its taking involved. While this is clear, it works no estoppel against the owner from claiming just compensation. Nothing short of an acquiescence in an adverse, hostile possession of sufficient duration to toll the entry, will [317] bar sucli a claim.—S. & N. A. R. R. Co. v. A. G. S. R. R. Co., 102 Ala. 236; Cowan v. S. R. Co., 118 Ala. 554; Thornton v. Sheffield, 84 Ala. 114; E. & W. R. Co. v. E. T. V. & G. R. Co., 75 Ala. 280. The trespass in this case, as shown, was made in the beginning, by the Rome & Decatur Railroad Co., which entered on the land of respondents, some of whom were and are infants, and constructed and operated its road. This company went into the hands of a receiver, who sold the road under orders of court, and the East Tenn. Ya. & Ga. Railroad Company purchased, went into possession and operated the same, until it, also, went into the hands of a receiver, who sold under orders of court, when the complainant company purchased, went into and has continued since in possession, and is now, as owner, operating the road, carrying freig’lit, passengers and the United States mails.. It is not shown that either of these companies ever paid anything for the right of wav over respondents’ land, nor did either ever institute proceedings under the statute to condemn said land to the uses of said companies or either -of -them. Under these conditions, respondents have instituted their action in ejectment in the lav/ court to recover the possession of their property. . There is no pretense that they are not the owners of the fee in the land sued for, nor is there any that they have ever been compensated therefor. It is urged, however, as a basis for the equities of the bill, that respondents ought not to be allowed to eject complainant, since by their failure to assert their rights, they have allowed complainant and the public as well to acquire rights, which a court of equity will not allow to be impaired. It is a bill which asserts an equity and seeks to have it declared. In all such cases, the maxim is of special application, that he who seeks equity must offer to do equity, and thereby give the court jurisdiction to decree against him and in favor of his adversary, so far as equity may require it.—Micou v. Ashurst, 55 Ala. 607, 611; A. F. L. M. Co. v. Sewell, 92 Ala. 163, 169; Grider v. A. F. L. M. Co., 99 Ala. 281; Giddens v. Bollings, Ib. 319. The defendants in the cause being the owners of the title, as the bill seems to concede, might [318] have filed their bill for compensation, and it would have been sustained and made effective, if necessary, by injunction against the further operation of the road until defendants' damages were properly ascertained and paid, or until the company obtained -the right of way in legal form.—Thornton v. S. & B. R. Co. supra; Cowan v. S. R. Co. supra. This privilege, however, did not prevent their bringing their action for the recovery of the land, which they were entitled to prosecute to judgment and the dispossession of complainant, unless it pays just compensation; This is the only principle on which a court, of equity can consistently with its long established rules of procedure, entertain the suggestion of equity in a hill of this character. Without offering to do so, complainant seeks a large equity on its side, and denies a small one to its adversaries, though the right of respondents find protection in the constitution of the tftate. The entertainment of such a bill properly filed, furnishes an illustration of the adaptive powers of a court of equity to meet the new and varied necessities and exigencies of society and the trade and commerce of the country. All equities, of whatever character, may be balanced and settled between contending parties, on the golden rules of the court, that he who seeks equity at its hands, must appear with clean hands, and offer to do equity to his adversary. Without the application of such rules to this case, the constitution shielding the defendants against the taking of their property would be subverted, and a cardinal principle of equity set aside. Having acquired jurisdiction of such a case on proper bill filed, the court has adequate power to ascertain and decree the amount to be paid as damages. First Nat. Bank of Gadsden v. Thompson, 116 Ala. 166. The contention that the complainant as successor to the Rome & Decatur Railroad Co. is not liable, as ivas the original company, to pay the compensation to which respondents may be entitled, is entirely wanting in merit.—Cowan v. S. R. Co., supra. Affirmed.