Mobile, Jackson & Kansas City R. R. v. Louisville & Nashville R. R.

SIMPSON, J. Tlie original bill, in this case was filed by the appellee, and sought to enjoin appellant from building its railroad track upon any part of the right of way of appellee and from crossing any of its tracks on Water street in Mobile, and from building said tracks on said Water street within a less distance than eight feet, three inches, from appellee’s rail, and from building within a less distance than three feet- from the sidewalk abutting on certain lots described as belonging to appellee, and also from building over said lots without condemnation and payment. A preliminary injunction was granted, but, on final hearing, the injunction was dissolved and the bill dismissed. The case having been brought, by appeal to this court, was reversed and remanded. — L. & N. R. R. Co. v. M. J. & K. C. R. R. Co. 124 Ala. 162. The action of this court was based on the rights of appellee, as owner of lots abutting on the streets, to enjoin the erection of a nuisance on the street, it being held that the act incorporating the Port of Mobile, did not confer the authority to grant a franchise of its public streets for railway purposes, consequently that the ordinance attempting to grant said franchise was void and that a railway built on said streets Avithout authority of law was a nuisance It was consequently declared by this court that “the complainant was entitled to the injunctive relief sought,” and the case was reversed and remanded. The case having been resubmitted by the complainant, the defendant offering no additional evidence, the chancellor granted the relief sought by the original bill, and, in accordance with the former decision of this court. While the decision of the court must be affirmed, yet, as its Avording is liable to be misinterpreted, as suggested by counsel for appellant, we declare its meaning in those particulars to be that the injunction against building the tracks of appellant upon any part of the right of Avay of appellee, refers only to its right of way on Water street in the city of Mobile. Counsel for appellant object that in authorizing the injunction against appellants cross [156] ing the tracks of appellee on Water street, the appellant is deprived of the rights given by the Constitution and statutes of Alabama to condemn a crossing over any other railroad, but it must be remembered that the only crossing sought to be made by appellant, is a crossing which is incidental to its laying its tracks on and along Water street in Mobile, which this court has declared to be a nuisance and subject to injunction on the complaint of appellee. This court does not express any opinion as to the right of a railroad company to condemn a crossing where it has authority to build, as that question is not presented by the record. Taking the view of the case which we do, it is unnecessary to refer specially and separately to the several assignments of error and objections urged thereto. Let the judgment of the court be affirmed. . McClellan, C. J., Tyson and Anderson, J.J., concurring.