Southern Railway Co. v. Birmingham, Selma & New Orleans Railway Co.

SHARPE, J. Complainant made application to the probate court for condemnation of a railroad right of way, across a railroad and right of way held by defendant under a lease. Damages were assessed by three commissioners. The amount assessed was paid into-the probate court and that court made an order of con — 667 — demnation. The defendant and its lessor appealed from the assessment to tlie circuit court. Complainant gave bond to pay snclx judgment as might be rendered on appeal and attempted to build its road across the older road. Complainant brings this bill to enjoin the defendant from resisting that attempt. The main question raised is whether complainant’s right to enter on the condemned property is postponed by reason of the appeal; and that question will be solved by\determinr ing whether the proceeding's had in the probate court preclude the defendant to have payment of damages as they may be ascertained by a jury before the complainant enters. The statutes relative to eminent domain are dominated by constitutional provisions on the same subject of which the one particularly applicable is as follows : “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. The general assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers, or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to law.” Const. Art. XIY, § 7. The landowner’s right to have just compensation as a condition precedent to any taking of his property for public use has been declared in the foregoing and reiterated in other parts of the constitution in terms so clear as to need no interpretation. It is not disputed here. As the amount is of the essence of compensation, the mode of ascertaining what shall be deemed just is, so far as it is controlled by the constitution, 'an essential part of the guaranteed right of payment which no statute can infringe. Complainant bases its claim to enter on sections 1719 and 1720 of the Code, the first of which directs that an order of condemnation be .made on payment of damages — 668 — as assessed by commissioners, and the later of which, is as follows: “Either party may appeal from the assessment of damages and compensation by the commissioners to the city or circuit court of the county within thirty days after the making of the order of condemnation upon the report of the commissioners, by filing in the court rendering the judgment a written notice of appeal, a copy of which shall be served on the opposite party, -and on such appeal the trial shall be de novo; but no appeal shall suspend the judgment if the applicant shall give bond with good and sufficient surety, to be approved by the judge of probate, to pay such judgment as shall be rendered on appeal.” Whether the statute was intended to give the condemnor the' privilege of entry on compliance with the conditions prescribed is not clear. The judgment which is not to be suspended, if bond be given, is not enforceable by any process of the probate court. It does not purport to transfer possession nor does the statute in terms declare what effect the judgment shall have other than to fix the status of the property as condemned. ■ In this respect this section of the Code differs from section 1721, which applies in the circuit court and provides, that payment or deposit of the sum assessed by the jury shall “vest in the applicant the easement proposed, to be acquired,” and that on appeal therefrom to the Supreme Court, a like deposit together with the costs of the proceeding “shall be entitled to enter upon the land so condemned, and survey, construct, and operate on the same for the uses and purposes stated in the application; but such easement shall not vest absolutely in such person, corporation, or association until the final determination of the cause and the payment or deposit in court of such damages and compensation as shall then be adjudged.” Where compensation has been assessed in a constitutional mode as b‘y a jury or by the court, if the jury be waived, -as may be done under the latter section, and the amount has been paid or deposited for the landowner, the constitution’s guaranty is satisfied and the statute may authorize the con-demnor’s entry pending an appeal from such an assess — 669 — ment. Tlie difference between tbe two provisions points to tlie conclusion that section 1720 was not intended to apply absolutely in all eases. ' It may have full operation where the parties acquiesce in the action of commissioners. That parties might so acquiesce and thereby hasten the end of litigation was understood by the authors of the present constitution. To this end they changed the system which under the next preceding constitution had authorized assessment only by jury in the first instance, so as to recognize in the legislature authority to provide for preliminary assessments by viewers and otherwise. They also understood that such assessments might form an unsafe criterion of value; that when not at a sum sufficient the landowner would need protection and that when exorbitantly large the other party ought likewise to have a remedy. A common law jury was, therefore, designated as the final arbiter to which the parties might resort, and the legislature was prohibited from preventing either party from appealing to a tribunal having such jury and having there the compensation assessed by a jury of twelve men. To accord to section 1720 the effect of permitting the landowner’s disseizin pending his proper efforts to have his damages so ascertained would be to defeat the plainly given right of prepayment. It would compel him to wait on future litigation to obtain the equivalent of property wrested from him, and that at the risk of the taker’s insolvency. The bond required by that section cannot be substituted for prepayment. A necessity to sue for compensation cannot lawfully be imposed on the landowner. It is- extra of the constitutional requirements and its efficacy is referable alone to the restricted legislative power. In urging that the bond, together with a deposit of the sum as>-sessed by commissioners suffices to allow an entry, complainant relies on an expression found in the opinion delivered in Cooper v. Anniston, etc. R. Co., 85 Ala. 106. The expression referred to was in substance but a recital of what was contained in a then existing statute, and apparently was made without reference to the question of its constitutionality. It is not authbrity for the decision of this case. We are also referred to — 670 — section 580 of Lewis on Eminent Domain where it is said: “Statutes permitting the pa-rty condemning to take possession pending an appeal by either party upon making a deposit of the damages awarded are uniformly upheld by the courts. But in the absence of a statute permitting it, the party cannot obtain the right to possession pending an appeal by tendering or depositing the damages awarded.” This statement of the law goes on the assumption that the assessment appealed from is such as to meet constitutional requirements, such as were considered in the numerous cases cited by that author. Reports of those cases disclose that they are based on assessments which when made by commissioners or viewers were under constitutions allowing compensation to be merely secured or in other respects differing 'from ours. The precise point here involved has not been expressly adjudicated by this or any other court so far as our search has extended. Wherever a constitution like ours of 1868 has required prepayment, and designated a jury as the only legal agency for assessing compensation, the courts when called on for construction have held the mode of assessment as inseparably connected with the right of prepayment and as restricting the legislature to that mode.—Lewis on Em. Domain, § 311; Tiedeman’s Stat. and Fed. Control Per. and Prop., § 144; Mont. Etc. R. Co. v. Sayre, 72 Ala. 443; Ill. Central R. Co. v. Commrs. 161 Ill. 247; Chicago, M. & St. P. R. Co. v. Hock, 118 Ill. 587; Jacksonville, Etc. R. Co. v. Adams, 33 Fla. 608; 24 L. R. A., 272. As supporting our conclusion that the landowner in • this State is protected in 'his possession so long as he has not had or waived the right to have his compensation assessed by a jury of twelve men, see Postal Tel. Co. v. A. G. S. R. Co., 92 Ala. 331; Woodward I. Co. v. Cabaniss, 87 Ala. 328; M. & C. R. Co. v. Birmingham, etc. R. Co., 96 Ala. 571. In the last cited case it was also well decided that section 21 of Article XIY of the constitution in declaring the right of railroads “to intersect, connect with, or cross any other railroad, does not authorize an invas — 671 — Ion of the older right of tvay' without condemnation as in other cases. The bill is without equity. A decree will be 'here rendered, reversing the decree of the chancery court, dissolving the injunction issued therefrom, and dismissing the bill. Let the complainant pay the costs in this court and in- the chancery court. Tyson, J., dissenting.