Southern Ry. Co. v. Hays

TYSON, C. J. The hill in this cause is exhibited to secure to the complainants the constitutional guaranty of “just compensation” to he paid before their pioperty shall he taken, injured, or destroyed by the respondent, AA'liich is empowered Avitli the right of eminent domain under the laAvs of this state. The right to maintain such a bill, AA’ithout regard to the solvency of the respondent or ihe adequacy or inadequacy of legal remedies, has been too fairly established by the decisions of this court to noAV admit of serious discussion—Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 129, 24 South. 368; Mobile & Montgomery Ry. Co. v. Ala. Midland Ry. Co., 123 Ala. 145, 26 South. 324; City Council of Montgomery v. Lemle, 121 Ala. 609, 25 South. 919; Niehaus v. Cooke, 134 Ala. 223, 32 South. 728; Coyne v. Warrior Southern Ry., 137 Ala. 553, 34 South. 1004. [216] The deed fiom Winnie Parker to “Fannie Hayes and her two children, Bessie Thomas (Hayes) and Clifton Hayes, and any succeeding heirs of her body,” to the lot a portion of which was being appropriated by the respondent, does not, as is contended by appellant, exclude the right of the after-born children of Fannie Hayes, who are also made complainants to the bill, to an inteiest in the property. If there were no other Avords in the deed indicative of an interest on the part of the grantor that after-born children of Fannie Hays should take as tenants in common AA'ith their mother, Bessie Thomas, and Clifton, than the Avords “any succeeding heirs of her (Fannie’s body,”) Ave would perhaps be constrained to hold that these Avords are Avords of limitation, and not of purchase, and that such after-born child Avould take nothing under the deed.—Slayton v. Blount, 93 Ala. 575, 577, 9 South. 241. But when these words are construed in connection AAdth the habendum clause in the deed, to Avit, “To have and to hold to Fannie Hayes and her children and their heirs and assigns, forever,” Ave are of the opinioa that the grantor used the Avords first above quoted as meaning children. In other words, it Avas her intention to give the lot to Fannie and her children then living and those that may be born to her after its execution.—Sullivan v. McLaughlin, 99 Ala. 60, 11 South. 447; Campbell v. Noble, 110 Ala. 382, 19 South. 28; Watson v. Williamson, 129 Ala. 362, 30 South. 281; Findley v. Hill, 133 Ala. 229, 32 South. 497. Conceding, without deciding, that the presumption Avill he indulged, that the deed is Amid because its execution Avas not joined in by the husband of Winnie Parker, it being further presumed that she had a husband at the date of its execution, it is certainly color of title; and if the complainants are in possession of the lot, and haArn held it as their OAvn under the deed for 10 years or longer prior to the trespass by defendant, they have the title to it. This disposes of the motion to dismiss and all the grounds of demurrer insisted upon adAmrsely to appellant, except the seventh. As the objection sought tc [217] be raised by it goes only to the averments of paragraph 11 of the bill as amended, and as the ground was interposed to the biil in its entirety, it was properly overruled.—5 May. Dig. p. 345. But, aside from this, we find no such repugnancy in paragraph 11 as is attempted to he i-aised by it. The decree appealed from must he affirmed. Dowdell, Simpson, and Anderson, JJ., concur.