New Orleans, Mobile & Chattanooga Railroad v. Frederic

Tarbell, J.: Emilie Frederic, widow of Lewis A. Frederic, deceased, and the children and heirs of said deceased, in 1870 filed their bill in the chancery court of Jackson county, against the New Orleans, Mobile & Chattanooga Eailroad Company, an incorporated company under the laws of the states of Alabama and Mississippi, to restrain said company from proceeding, under their charter, to acquire the lands of the complainants for the use of the company. The bill states that the decedent, in his life time, was the owner of a tract of land on the east bank of the Pascagoula river, having a front on said river of two hundred and thirty-eight feet, — 7 — and extending back about sixty-eight chains, which, he acquired by purchase and deeds in 1829 and 1832. The deceased entered into the possession of said land, and died seized and possessed of the same, in the year 18 — . Upon the death of deceased, the title to said premises vested in complainants, and has been ever since occupied by them as their family residence, and is them homestead. Complainants aver that the railroad company, for the purpose of constructing a railroad from New Orleans to Mobile, have located said road, and have proceeded to acquire the right of way for the same, by purchase and otherwise, under the charter of said company, one hundred feet wide, through the land of complainants above described, which line and location strikes said land on the east bank of the Pascagoula river, on the northern portion of said land, and the said one hundred feet right of way will not touch the buildings on said land, which are situated on'the southern portion of said tract, near the river. Complainants do not object to the location of said road, nor to the right of way through said land, one hundred feet wide, and they state that the Pascagoula is a navigable stream, and that the front of complainants’ property is a high bank upon said river, with deep water close to the shore; and they, as owners of said land, have riparian rights upon the shore and river which are of great value to them, and of which they have the right of use and enjoyment. It is conceded that the railroad company have the right, by their charter, to acquire lands for depots, stations and turnouts, but under this power it is charged that the company have proceeded to appropriate the whole of the river front to said property, from the shore easterly about one thousand feet, and have also acquired other property on the north of said line six hundred and fifty feet wide, under the pretense that the same is necessary for a depot or station; and under this pretense are ascertaining their right and power, under their charter, to acquire property upon the — 8 — bank of the river, and the riparian rights which the ownership of such land will give them. It is alleged that the front portion of the said property is neither necessary nor suitable for depot purposes. Complainants deny the power and right of said company to acquire the banks of the river, and to appropriate the riparian rights of the complainants upon the river, to any greater extent than is necessary for the right of way one hundred feet wide; and they aver that the shores of said river are not necessary to said company for a depot, and under the charter there is no right to acquire the same by “expropriation.” Yet the company have proceeded to have the same condemned to their use. And it is further charged, “that said company cannot be the sole judges of what is necessary, and under that pretended right to acquire riparian rights upon the bank of said river, which, it is true, may be valuable to them and enable said company to establish public or private wharves upon the said river for the accommodation of commerce and said company, which,” it is averred, “said company have no power or authority to do under their charter;” that the said Emilie, one of the complainants, has been notified that she is a tenant at will to the railroad company, and must remove from her home, or be turned out of possession ; that notice of thé time and place of application for the appointment of commissioners to appraise the value of said property, was served only upon said Emilie, and not upon the other complainants ; that the said Emelie had no interest,in said lands, except her right of dower, which had never been set off to her ; and that the proceedings are void and the company obtained no right to said land. An injunction is prayed for to restrain defendants, except as to right of way one hundred feet wide. There is also a general prayer for relief. Among the interrogatories propounded in the bill to which answers are demanded of the company, is this, viz.: “Whetherthe said lands of” the complainants, “imme — 9 — diately on the banks of tlie Pascagonla river are necessary for said company for depot or station purposes.” The company demurred to tlie bill, stating numerous causes tlierefor, the more important excepting to the bill, because it alleges the property in suit to be a homestead; because the gravamen of the bill is the right to the land on the bank of East Pascagoula river, a navigable stream, between high and low-water mark, which belongs to the public and not to complainants; because the bill shows ample remedy at law; and other causes involving a construction of the act of the legislature incorporating the railroad company. The demurrer was overruled, and the defendants appealed, assigning for error the decree overruling the demurrer. In view ‘of the facts admitted by the demurrer, that all the owners of the land in controversy were not served with notice of the proceedings of the railroad company to appraise the same, with a view to its condemnation and appropriation by the company as required by the charter, we have concluded to remand this case in order to have it heard on its merits. There are several questions of grave importance involved, which we can better determine upon a full understanding of all the facts, should the case come again to this court. We recognize the riparian rights claimed by the complainant, and the assertion of the bill in connection therewith, that the railroad company are experimenting upon their power under the charter to obtain rights not conferred and not necessary, and more lands than are required for depot purposes, as involving questions of merit upon which we now express no opinion, further than that they are important. One of the adjudications referred to by counsel for appellants, as bearing upon the case at bar, is that of Morgan & Harrison v. Reading, 5 Smedes & Marsh. 366, in which Ch. J. Sharkey delivered one of his able and learned opinions, sustaining the right of the owner of the land on the bank of the river to the thread of the stream, subject only to a right of passage thereon as a highway when the stream admits it. We are also referred to the — 10 — case of the Commissioners of HomooMtto river v. Withers, 29 Miss., upon a kindred topic, the power of the state over its navigable waters, wherein the doctrine is maintained that the legislature has general power to pass laws providing for measures of interval improvement of the public rivers and other highways within the limits of the state, subject only to the limitations and restrictions of the constitution, one of these restrictions being, that private property shall not be taken or applied to the public use, without just compensation. The cases of Morgan & Harrison v. Reading, and Commissioners of Homochitto river v. Withers, and the questions discussed, are very fully reviewed, in the Steamboat Magnolia v. Marshall, 39 Miss. 109. From these adjudications,* the rights of the complainants upon the bank of the stream and to the land under water, with their incidents, are easily deducible, as well as the power of the sovereign authority over private property. See, also, 34 Miss. 228; 36 ib. 300; 37 ib. 173; Bouv. Law Dic., title Riparian Rights, and cases there cited. Curran v. Shattuck, 24 Cal. 427, was an action to enjoin the defendant from proceeding as an overseer of roads to open a highway over the lands of plaintiff. The latter denied that he had any notice of the proceedings of the road commissioners, which, being admitted, the court sustained the injunction, saying: “It cannot with propriety be urged, that the injunction in this case will prevent the laying out of a road at any future time over the lands of the plaintiff; for, notwithstanding the proceedings that have been had before the board, whether the proper steps are taken to acquire the right of way, and that right has been secured, the road may be opened, and the present injunction will not be operative against the exercise of the rights thus acquired.” In the case at bar, as in the one last quoted, notice to the parties interested is a prerequisite, without which the proceeding is void. The company, invested with the extraordinary power to appropriate private property, a power which — 11 — can be exercised only by tbe sovereign authority for the public use, seek to take in the summary mode pointed out in the charter, the lands of the complainants. If unable to acquire title by purchase, application may be made to certain courts, or judges, in vacation, for the appointment of commissioners to determine the compensation to be made to the owners, notice of which application must be given to all the parties in interest. Sec. 4, acts of 1867, p. 332. Notice of the time and place of meeting of the commissioners must be given (sec. 6), and also of the hearing of their report for confirmation. Sec. 7. Notifying, according to the bill, admitted by the demurrer, only one of the joint owners of the land involved, and thereupon proceeding to the appraisement and confirmation of the report, the company, by notice, claims the occupants to be tenants at will thereto. In restraining the further proceeding of the company, in such a case, the writ of injunction is performing its most gracious mission. 2 Story’s Eq. Jur., §§ 694, 698, 700, 701, 730, 861-872; Petit v. Shepherd, 5 Paige, 493; Burt v. Cassedy, 12 Ala. 734; Eden on Injunctions, ch. 1; 1 Madd. Ch. Pr.; 1 Ves. Jr. 284; 5 ib. 293, 618; 7 ib. 413; 1 Bro. Ch. 124; 3 ib. 15, note 1; 2 Swans. 159, note; 2 Pet. 95. All statutory modes of divesting titles must be strictly followed. He who relies for a title upon an extraordinary mode of acquisition given him, not by the will of the owner, expressed or implied, but against his will and by the mandate of the law, must show for his warrant a strict compliance with those statutory rules from which his title accrues. The power confirmed must be executed precisely as it is given, and any departure will vitiate the whole proceeding. Busby v. Mountain Lake Water Co., 13 Cal. 306; Sedgwick on Stat. and Const. Law, 319; Cruger v. Hudson River R. Co., 12 N. Y. 190, and several cases in this state. ' It is no answer to the injunction to say there is ample remedy at law. The complainants are menaced in their title and possession by a quasi legal proceeding, and by a — 12 — corporation representing the collective power, influence and wealth of many. When, where, in what court, or in what mode the company will attempt to enforce the title, which, by its notice, it claims to have acquired, are among the uncertainties to which the complainants are subjected. Unrestrained by injunction, we may presume the company would succeed in obtaining possession of these lands, and thus dispossess the owners, without divesting them of title. Once out of possession, the complainants could appeal in vain to the ordinary process of law, with its delays, costs, expenses and annoyances, for that redress to which they would be entitled. As an abstract proposition, independent of all other considerations, it would be an act of injustice to deny to the complainants the writ of injunction to protect them in their possession, pending the proceedings to deprive them of their property. In its remedial character, in the prevention of injustice and oppression, we conceive this writ to have been appropriately employed in the case at bar, as presented by the record before us. Regarding railroads as public improvements, and their builders as public benefactors, nevertheless, holding an even balance of the scales of justice between them and the humblest citizen, the latter as well as the former must be protected in their legal rights. That the construction of the railroad is a great public enterprise cannot be invoked in justification of the violation of private rights, though it may be conceded, that in such cases an injunction is not a matter of absolute right, but depends upon a consideration of all the equities of the case. Bruce v. The Del. & Hudson Canal Co., 19 Barb. 371; Ely v. City of Rochester, 26 ib. 133; Creanor v. Nelson, 23 Cal. 464. The justice of the injunction, upon the case presented, seems to be sustained by reason, the adjudications, and the constitutional guaranty that no person shall be deprived of his property, except by due process of law. The decree overruling the demurrer is aíñrmed, with leave to defendant to answer within forty days from this date.