Ex parte Montgomery Light & Traction Co.

ANDERSON, C. J. The probate court refused to grant the application for condemnation, and the order was appealable under section 3878 of the Code of 1907, and which said section seems to have been complied with by the petitioner. Sec: tion 3875 relates to appeals from the order of condemnation, and not from an order refusing the application. It is also questionable as to whether or not section 2855 applies to or includes appeals in condemnation proceedings as they are specially provided for in the condemnation laws.—State v. Williams, 125 Ala. 116, 28 South. 401. While the order in question was appealable to the city or circuit court, and the stat [380] ute provides that the trial shall be de novo, yet it is essential to the jurisdiction of the city court that the petitioner makes out a case under the statute entitling him to a condemnation in the event the petition can be proved. The petitioner in the lower court seeks to condemn the tracks of the Montgomery Street Railway upon certain streets, as set out in its petition, and is proceeding under section 3860 of the Code of 1907, which says: “Any county, municipality or 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, may, if there be no other mode of proceeding prescribed by law, apply to the court of probate of the county in which such lands, or a material portion thereof, may be situate, for an order of condemnation thereof to such uses.” It must be noted that this statute only authorizes the condemnation of “lands” of another, and, while “lands,” as used in said section, may be construed in its broadest sense, it could hardly include the track of the respondent, which is laid in a public highway by the permission of the municipality, and as to which said street the respondent acquired no property right. The interest that it has was not, and could not, be procured by condemnation, but was obtained through the consent of the municipality to use its streets in a certain manner, nor can said interest so acquired be the subject of condemnation under the terms of section 3860. The Supreme Court of Massachusetts, in the case of Lorain Steel Co. v. Norfolk, etc., Street Ry., 187 Mass. 500, 73 N. E. 646, in discussing the nature and character of a street railway track upon the streets of a city as distinguished from an ordinary railway track, says: [381] “There is, however, a clear distinction between the nature of a right of way acquired by a railroad and the ordinary grant of a location in the public Avays to a street railway. “When not obtained by purchase, a railroad corporation lays its rails on land in Avhich a right in the nature of a permanent easement has been taken by the exercise of the delegated power of eminent domain, and thus an interest in real estate is acquired.—Barnes v. Boston & Maine Railroad, 130 Mass. 388. “Within the limits of the layout it has the exclusive use and control of its roadAvay for all purposes authorized by its charter, whether by a special act of incorporation, or under the general laws, subject only to such transitory invasions as may be required by a public emergency.—Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1 [6 Am. Rep. 181]; Sweeney v. Boston & Albany Railroad, 128 Mass. 5, 6; Pierce v. Boston & Lowell Railroad, 141 Mass. 481, 486 [6 N. E. 96]. “And among the uses to which the location lawfully can be put áre not only the construction and maintenance of the roadbed for the running of trains, but also of buildings necessary for carryiny on the business of a •common carrier as ordinarily conducted.—-Pierce v. Boston & Lowell Railroad, supra. “The interest in land thus acquired and held takes on all of the characteristics of an estate in fee, with the single exception that, where the taking is of an easement alone Avhen the use ceases, the easement is at an end, •and, for this reason, the general rule of the common laAV that what is annexed to the freehold by the owner becomes a part of the realty and passes by his deed is held applicable to conveyances made by a railroad of its right of way, roadbed, and track.—Butler v. Page, 7 [382] Metc. [Mass.] 40 [39 Am. Dec. 757]; Hunt v. Bay State Iron Co. (97 Mass. 279) supra. “But a street railway gains no easement or freehold interest in the soil or exclusive control of the highways in which a location is granted to lay tracks and operate the road. The right conferred is to use the way within its location in common with others, and not exclusively for its own benefit. The whole way is as fully open to the lawfuly use of travelers after the road is built and in operation as before.—Middlesex Railroad v. Wakefield, 103 Mass. 261; Attorney General v. Metropolitan Railroad, 125 Mass. 515, 517 [28 Am. Rep. 267]; O’Brien v. Blue Hill Street Railway. 186 Mass. 446, 447 [71 N. E. 951].” We are impressed with the soundness of this holding, and do no think that petitioner’s track is comprehended within the term “lands,” as used in section 3860 of the Code. The authorities cited by respondent as to the meaning of the words “land” and “real estate,” as used in condemnation statutes, simply give the general definition of the words; but none of them hold that a street railway in a public street comes within the terms “land” or “real estate.” That the Legislature may authorize the use, under certain conditions, of the track of one street railway by another, there may be no' serious doubt.—Elliott on Roads and Streets, § 966. It may also be true that the Legislature can, under section 23 of the Constitution of 1901, provide for the condemnation of the property or franchise of a street railroad, whether it be land or not; but we are not now dealing with the power that the Legislature may exercise, but with the power which it has exercised, and we find that it has not given the probate court jurisdiction to condemn the property in question- [383] The writ of prohibition will only be issued to prevent unauthorized judicial or quasi judicial acts; that is, to restrain the exercise of a judicial or quasi judicial function when such action is not authorized. Nor will the writ be issued, even in these instances, if the petitioner has a plain, speedy, and adequate remedy by appeal. It may be true that section 3881 gives the right to appeal to this court from the judgment of the circuit or city court in condemnation proceedings ; but, under the terms of section 3882, the order of condemnation is not suspended, and this petitioner’s property goes into the possession of the condemnor pending the appeal. We cannot, therefore, say that the petitioner has an adequate remedy by appeal, and it would be a useless ceremony to condemn the property and go through the or-' deal of assessing damages when the petition does not make out a case sufficient to invoke the jurisdiction of the trial court. The writ of prohibition will accordingly issue restraining the city court from further proceeding in the matter. Writ of prohibition granted. McClellan, Sayre, and de G-raeeenried, JJ., concur.