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sion resided with other parties, from whom the defendant corporation had a license, or conveyance, under which it entered upon possession, and commenced the appropriation of the lands. The answer, in so far as it is in denial of the possession of the complainant, and of the possession of its predecessors or privies in estate, is directly responsive to the allegations of the bill, and is in denial of all the right and title to relief vouched by the complainant. It is more than a denial of the right and title of the complainant; it is the assertion of right and title in the defendant corporation, rendering strictly lawful its entry upon and its possession and appropriation of the lands. Though relief is granted more readily to a landowner whose lands are entered upon by a corporation having compulsory powers to take them for its own uses, and upon a different principle, than in cases of trespass, waste, or nuisances, yet, as in such cases, if the right and title of the party complaining are not clear, or if the whole controversy resolves itself into a naked dispute as to the strength of the legal title, and it be not shown that an action of trespass or of ejectment will not afford all necessary relief, the court will not intervene by injunction. 1 High on Inj. § 629; Boulo v. N. M. & T. R. R. Co., 55 Ala. 480. The necessity which induces the intervention of the court springs from the duty of the corporation not to enter upon and dispossess the true owner without his consent, or without the course of judicial proceedings which the statute prescribes, and the payment of just compensation, as demanded by the Constitution. The court will not intervene to quiet titles, or to decide controversies as to the title. There are other and more appropriate remedies and tribunals for the determination of all such controversies. Taking the averments of the answer as true, and, upon this motion, so far as responsive, they must be deemed true, the case does not fall within the principle upon which the court has proceeded in cases of this character. There has been no invasion of the possession or property of the complainant, and the true owners, having possession, to whom only the defendant corporation owed duty, have not been dispossessed without their consent. The observation of the ViceChancellor, in Webster v. S. L. R. Co., 1 Simons (N. S.), 277 (40 Eng. Ch.), that when the corporation has treated with one in possession claiming to be the owner, and acquired the right to enter upon and possess the lands, the court should not interfere, and brevi manu arrest its operations at the instance of a third person, of whose claim and title the corporation had not notice, has a direct application to the case. If, in such a case, the court interfered, there is much of reason to apprehend that often it would do as great injury as that which it is solicitous to avert. A temporary injunction could and would not infrequently be sought for the purpose of pressing the corporation into a compromise, or into

terms with parties who, it could show eventually, were without a right to relief, to whom no wrong had been done.

WHERE ANSWER
DENIES

AL AVERMENTS

TION DISSOLVED.

The general rule is well settled that if a verified answer fully and unequivocally denies the material allegations upon which the equities of the bill depend, a temporary injunction will be dissolved. The rule is of more inflexible application to bills enjoining proceedings in courts of common law than to special injuneMATERI tions for the prevention of the invasion of property, or OF BILL, INJUNC. of irreparable injury. In cases of special injunctions, though the answer may be in direct negation of the equity of the bill, the court exercises a sound judicial discretion, and will retain the injunction, if it be clear that greater injury will result to the complainant from its dissolution than will result to the defendant from its continuance to the final hearing. Bibb v. Shackelford, 38 Ala. 611; Chambers v. Ala. Iron Co., 67 Ala. 353; 2 High on Inj. §§ 1508 et seq. Upon this point there does not seem to us any real difficulty in the case. The right of the defendant corporation to take the lands, if necessary to the construction of its railway, by appropriate judicial proceedings, upon making just compensation, if they prove eventually to be the property of the defendant corporation, cannot be doubted. The property and franchises of a corporation may be taken for public uses equally with the property of the citizen. A. & F. R. R. Co. v. Kenney, 39 Ala. 307. And now the Constitution forbids the abridgment in this respect of the right of eminent domain. The grievance or injury which the complainant may suffer from a dissolution of the injunction is temporary, if eventually it proves to be the owner of the lands; there is only delay in making just compensation. But if the injunction be continued, the defendant corporation hindered and delayed in the construction of its railway, adequate pecuniary compensation in damages is not practicable; and the public, having an interest in the construction of the railway, will be subjected to inconvenience. Weighing, then, all considerations which it is proper to indulge in determining whether the injunction shall be dissolved or shall be continued, the preponderance favors a dissolution; there is less of injury and inconvenience to the parties than would result from its continuance. There is no question of the ability of the defendant corporation to make just compensation to the complainant, and the only possible injury which can result to the complainant is delay in receiving the compensation.

The decree of the chancellor must be reversed, a decree here rendered dissolving the injunction, and the cause remanded.

Injunctions to Prevent an Illegal Taking or Occupation of Lands by Railroad Companies-Irreparable Damage. In general, equity will not interfere to prevent a trespass, unless where it appears that irreparable injury or damage will be caused thereby to the property. But where a corporation is by statute or otherwise given the right of taking land by condemnation, it is well settled

that equity will interfere by injunction to prevent the wrongful seizure or occupation of private lands by such corporations. The theory on which this relief is granted is to prevent the corporations from abusing the important and highly arbitrary power of condemnation, and to protect private persons from encroachments by large and privileged corporations; and it will be granted quite irrespective of any question of irreparable damage. Cosens v. Bagnor Ry. Co., 1 Ch. App. 594; Horton v. Hoyt, 11 Iowa, 496; Omaha, etc. R. R. Co. v. Menk, 4 Neb. 21; Bohlman v. Green Bay, etc., R. R. Co., 40 Wis. 157; Sturtevant v. Milwaukee, etc., R. R. Co., 11 Wis. 62.

In the case of Western Maryland R. R. Co. v. Owings, 15 Md. 199, an injunction was prayed to prevent a railroad company from making a railroad over complainant's lands. The bill alleged that the company had not paid nor tendered compensation for the use of the lands. Judge Tuck in deciding the case said: "We do not perceive how the court could have refused the injunction in the face of this averment in the bill. The clause of the Constitution applicable to the point is too plain to admit of any doubt. The nature of the damage, whether irreparable or not, has nothing to do with the question when thus presented."... "We have no doubt of the jurisdiction of the court of equity in such a case as this. It has been frequently exercised, as shown by the authorities cited in the argument, and there are many others to the same effect, that corporations may be restrained from an abuse of their powers." In Bird v. Wilmington, etc., R. R. Co., 4 Am. Law Reg. 222-225, it was held that the mere fact that the railroad company had proceeded to take possession of complainant's land before instituting proceedings for condemnation, was a sufficient reason for granting an injunction.

In River Dun Nav. Co. v. North Midland Ry. Co., cited above, a bill for injunction had been filed to prevent a railroad company from taking land outside of the line in which it was authorized by act of Parliament to condemn. The Vice-Chancellor refused an injunction below on the ground that the bill did not aver that irreparable injury would result. On appeal, the Chancellor held that the injunction would lie to restrain the company from proceeding beyond the powers given them by statute. The Lord Chancellor says: "I am not at liberty (even if I were in the least disposed, which I am not) to withhold the jurisdiction of this court, as exercised in the first case in which it was exercised, that of Agar v. Regents Canal Co., Cooper's Rep. 77, where Lord Eldon proceeds simply on this-that he exercised the jurisdiction of this court for the purpose of keeping these companies within the powers which the act give them. And a most wholesome exercise of the jurisdiction it is, because great as the powers necessarily are, to enable the companies to carry into effect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there were not a jurisdiction continually open and ready to exercise its power, for the purpose of keeping them within that limit which the legislature has thought proper to prescribe for the exercise of their powers." The injunction was refused, however, on another ground.

The following cases also support the general rule that equity will enjoin the taking of land by a railroad company without first condemning the same: Diedrichs v. Northwestern Union R. R. Co., 33 Wis. 219; Lumsden v. Milwaukee, 8 Wis. 485, 495; Northern Pacific R. R. Co. v. Barnesville & Moorhead R. R., 1 Am. & Eng. R. R. Cas. 8; Henderson v. New York Central R. R. Co., 78 N. Y. 423.

Injunction to Prevent Operation of Road.-On the same principle, where a railroad has illegally entered lands and built its road on them and fails to pay the damages adjudged, it is generally held that the operation of the road will be enjoined. Cozens v. Bagnor Ry. Co., 1 Ch. App. 594; Omaha, etc., R. R. v. Menk, 4 Neb. 21; Evans v. Missouri, etc., R. R. Co., 64 Mo. 453;

Sturtevant v. Milwaukee, etc., R. R. Co., 11 Wis. 62 (Statutory); Bohlman v. Green Bay, etc., R. R. Co., 40 Wis. 157; 30 Wis. 105; Story v. New York Elevated R. R. Co., 7 Am. & Eng. R. R. Cas. 596, 611; Gammage v. Georgia Southern R. R. Co., 10 Am. & Eng. R. R. Cas., 371; Kendall . Missisquoi R.R. Co., 14; Ibid. 423; Morris v. Chicago, etc., R. R. Co., 45 Iowa, 29; Richards v. DesMoines Valley R. R. Co., 18 Iowa, 259; Hibbs v. C. & S. R. R. Co., 39 Iowa, 340; White v. Nashville & Northwestern R. R. Co., 7 Heisk (Tenn.), 518; Murdock v. Prospect Park, etc., R. R. Co., 73 N. Y. 579.

In Bohlman v. Green Bay, etc., R. R. Co., 40 Wis. 157, the railroad company entered after condemnation proceedings which were void, and the court held that an injunction would lie to restrain the use of the road, ez debito justitia.

In

In Evans v. Missouri, etc., R. R. Co., 64 Mo. 453, it was held that equity would enjoin the operation of a road where the award, made in consequence of condemnation proceedings, had not been paid, and all statutory remedies to enforce its payment had been resorted to without success. the course of the argument the railroad raised the point that, the road being in actual operation, the interests of the public would require that its actual operation should not be interfered with by injunction. On this point the court say: "This position is taken with very poor grace by a corporation which, under the arbitrary forms of law, has wrested property from its owner. But the complexion of this case is not at all altered by any or all of the aforementioned circumstances. That mythical personage 'The Public,' so often summoned as a convenient accessory when some flagrant wrong upon constitutional rights is in contemplation, can only acquire rights' in the land even of the humblest citizen by paying therefor. The plaintiff not being guilty of laches, and not having waived or postponed his claim, his right to pay for his property as a constitutional condition precedent still exists in all its original vigor. And for the enforcement of this right equity will fully supply a remedy, and such a remedy as will fully meet the exigencies of the case."

In a New Jersey case the question whether a court of equity would enjoin a railroad company from entering upon the lands of others, when it undertook to do so without any claim of right or title, was passed by as not settled by State decisions. But the court held that a railroad company which had, by mistake, entered upon the lands of any other company and built its road there would not be enjoined in the operation of its road. Erie, etc., R. R. Co. v. Delaware, etc., R. R. Co., 6 C. E. Green (N. J.) 283.

Where Agreed Price not Paid.-An injunction will also be granted where the company enters upon an agreement to pay a fixed price or an award for the land, and after entering refuses or omits to pay such price or award. Thus in Stewart v. Raymond R. R. Co., 7 Sm. & M. (Miss.) 568, the company was in occupation of the land, and it was agreed that the question of compensation should be left to arbitrators. This was done and an award of $900 made. The company omitted to pay this, and the owner of the land threatening to put a fence across the track, the company filed a bill to restrain him from so doing, alleging, as an excuse for not paying the award, their inability to do so. The owner of the land filed a cross-bill to enjoin the company from operating its road across his land unless it should at once pay him the amount of the award. It was held that the original bill must be dismissed and relief given on the cross-bill. The court say: "If the company has no right to the easement before payment of the damages, the proposition that Stewart has a right to restrain the passage of the cars until such compensation, would seem to follow as an inevitable consequence."

When Injunction will be Stayed. Where it is sought by bill to enjoin the operation of a railroad over land which it has illegally taken, and when the

enjoining the operation of the road would be a serious matter and likely to cause public inconvenience and annoyance, the court will often withhold the injunction for a time in order to give an opportunity for the damages to be duly assessed and paid. Harrington v. St. Paul, etc., R. R., 17 Minn. 215; Story . New York Elevated R. R. Co., 7 Am. & Eng. R. R. Cas. 596; Gammage v. Georgia Southern R. R. Co., 10 Ibid. 376.

0.

Vendor's Lien.-In England it has been held that the owner of land taken by condemnation proceedings has a vendor's lien upon the land until the compensation awarded has been paid. Walker v. Ware, etc., Ry. Co., 12 Jur. 18. See also 2 Story, Eq. Jur. (12th Ed.) § 1231 b, and Provolt v. Chicago, etc., R. R. Co., 69 Mo. 633.

EEL RIVER AND EUREKA R. R. Co.

V.

FIELD.

(Advance Case, California. August 28, 1885.)

Where, as in California, the statutes authorize a railway company to alter its route even when once finally located, whenever the location can be improved, the mere fact that the company has, after its preliminary survey, acquired a right of way over another portion of defendant's land, over which it might, though at less advantage, build its road, does not render the taking of other land by condemnation unnecessary.

APPEAL from a judgment of the superior court of Humboldt county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

S. M. Buck for appellant.

W. H. Brumfield for respondent.

Ross, J.-The plaintiff, a corporation organized under the laws of this State for the purpose of building and operating a railroad from a point on the Van Duzen River to the city of Eureka, in Humboldt county, seeks by this proceeding to condemn a right of way for its road over the land of defendant. The answer of defendant put in issue the alleged necessity for taking the land in question, and upon this issue the court below found in favor of defendant, and accordingly gave judgment against the plaintiff. It is contended here that the evidence is insufficient to sustain the finding. It appears that one R. F. Herrick, at the instance of the plaintiff, made a preliminary survey for the line of its road through that portion of the land of the defendant described as "west

FACTS.

of the dike," and defendant sold to the plaintiff a right of way four rods in width for its road over that part of his land, "grant

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