Mobile & Montgomery Railway Co. v. Alabama Midland Railway Co. , 123 Ala. 145 ( 1898 )

SHARPE, J.

Notwithstanding the general principle that a trespass upon lands will not he enjoined in equity where the rights of the parties are legal and adequate relief can he afforded by a court of 1 aw, yet it is well settled that the courts of chancery will enjoin a corporation empowered to exercise the right of eminent domain when it is proceeding to take or injure land for its uses without consent of the owner and without legal proceedings to subject it to such use.—N. O. & S. R. R. Co. v. Jones, 68 Ala. 48, s. c. 70 Ala. 227; C. & W. R’y Co. v. Withcrow, 82 Ala. 197; Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 129; E. & W. R. R. Co. v. E. T. V. & Ga. R. R. Co., 75 Ala. 275.

The ground of this equitable jurisdiction is the enforcement of tiie constitutional prohibition against such taking or injury; and the constitutional provision is applicable alone where the right of eminent domain might be exercised.

In the case of E. & W. R. R. Co. v. E. T. V. & G. R. R. Co., supra, referring to the right of eminent domain, this court said: “The poAver is so capable of abuse ancl those who are invested with it are often so prone to its arbitrary exercise, that a court of equity, Avithout inquiring Avhethef there is irreparable injury or injury not susceptible of adequate redress by legal remedies, Avill intervene for the protection of the OAvner.”-

Under this principle this bill shows clearly a case for injunctive relief. It alleges an interest in each of the complainants, the one as lessor and the other as lessee of the lands in controversy, each of Avhich interests is subject to condemnation by appropriate legal proceedings to the use of .other railroads at least to an extent consistent Avith complainants’ use. The oAvnership of the complainant lessor is alleged, as is the title by which it- claims to hold; being by- deeds which are made exhibits, and by adverse possession thereunder for a time sufficient to perfect its title. It alleges the removal of dirt and the laying of defendant’s track along the land against complainants’ objection and without condemnation proceedings, and the bill is verified by affidavit in due form. It is, therefore, upon the character of the answer that the propriety of the decree appealed from must be determined.

Ordinarily, an injunction will not be dissolved upon the denials of the answer when the denials are stated merely-as conclusions or as inferences to be drawn from facts alleged in the bill. To overthrow allegations of fact in the bill, the answer must deny the existence of such facts specifically and without equivocation or evasion.—Henry v. Watson, 109 Ala. 335; Consolidated Electric Light Co. v. People’s Electric Light &c. Co., 94 Ala. 372; Rembert v. Brown, 17 Ala. 667; C. & W. R’y Co. v. Witherow, 82 Ala. 190; Teasey v. Baker, 19 N. J. Eq. 61.

So where the bill alleges facts constituting title in the complainant in the subject matter of the controversy and the answer depends upon a want of such title in the complainant, a mere denial of such ownership as a conclusion is insufficient; since from it the court cannot know the correctness of the conclusion. Upon the same principle where denials of complainant’s ownership are based upon a counter-claim of title by the defendant, his mere assertion of title as a conclusion is insufficient; but the facts from which the interest would arise should be set forth so that the court can see that the claim is well founded.

The description of the greater part of these lands and the complainants’ claim of-title thereto tire set forth in paragraph 3 of the bill.

The specific answer thereto begins by stating that the defendant “is not advised and has no knowledge of the facts set forth and contained therein, and therefore neither admits nor denies the same, but calls for strict and legal proof thereof.” This disclaimer of knowledge even as to complainants’ alleged adverse possession is followed by the statement that “if it be the purpose of the complainant in or by said paragraph of said bill or any part thereof to aver that either of them, the said complainants or the Alabama & Florida Railroad Co., have ever been in possession of or had title to any part of the parcel of land or the appurtenances thereunto belonging which forms the subject matter of this suit, then this defendant emphatically denies that either of said named railway companies either now or at the time of filing this bill had any just of legal right, title, claim or interest in or to the said property in controversy.”

This must be taken for the purpose of the motion to dissolve the injunction as an admission of the facts alleged in the third paragraph, and a denial merely as a conclusion that they give complainants any just or legal right.

The 4th paragraph of the bill avers the purchase and the procurement of a deed in 1871 to the complainant, the M. & M. Railway Co., of a right of way over a part of lot 9 and the continuous possession thereafter of the complainants successively. The specific answer to that paragrapli admits the alleged purchase; but states that “if it he the purpose of the complainants or either of them in or by said paragraph to set up or allege that they or either of them have any just or legal right, title, claim or interest in or to the land in- controversy (from the use and occupancy of which defendant is restrained by writ of injunction issued from this honorable court), then this defendant emphatically denies that said complainants or either of them have any legal right, title, interest or claim therein or thereto; and further denies that said Montgomery & Mobile Railroad Company, its successors or assigns, have been in possession of said tract of land ever since said deed was executed.”

Here again the complainants’ right is denied in a qualified way and only as a conclusion. Construed against the pleader the denial of complainants’ possession may relate only to a period after the bill was filed.

The answer proceeds further to deny that defendant has trespassed upon lands of the complainants, but its occupation of the lands described in the bill is not denied.

Replying generally to the bill the answer sets up that the defendant “has been in possession of the very parcel of land in controversy ever since the year 1890, and that it acquired title thereto by purchase from various persons who had been in open notorious adverse possession of said land for more than ten years previous to the occupancy thereof by this defendant.”

Here is new matter, tlie burden of proving which rests on the defendant, and. except so far as it may imply a denial of title in the complainants it cannot be looked to upon the motion to dissolve the injunction; the general rule in such case being that only so much of the answer as is responsive to the bill will be considered. C. & W. R’y Co. v. Witherow, 82 Ala. 190, supra; Calhoun v. Cozens, 3 Ala. 498.

It has been held, however, that where the controversy resolves itself into a naked dispute as to the strength of the legal title, equitv will not ordinarily intervene; and to bring the case within that category the last quoted paragraph of the answer may be examined along with others. We think, however, that it is lacking in definiteness and that the equitable remedy, when invoked for the protection of the constitutional rights, should not be defeated merely by the setting up of an adverse claim, unless the facts upon which the claim is based are also shown so that at least its bona fides can be recognized. Besides being weakened by the disclaimer of all knowledge of complainants’ possession, ignorance of which must have been impossible if the defendant had been in possession, the answer as to defendant’s acquisition of title “by purchase from various persons” whose identity is not disclosed is but the statement of a conclusion in which the court might not agree if the facts depended upon as conferring title were shown.

The answer is otherwise insufficient for the purposes of the motion for lack of a proper oath. Whether the oath is waived by the bill or not, the answer must be sworn to before an injunction will be dissolved upon its.denials.—Rule 32, Ch. Pr., Code, p. 1209; Hart v. Clark, 54 Ala. 490. The answer of a corporation is not an exception to the rule.—Griffin v Bank, 17 Ala. 258.

The affidavit to this answer is made by defendant’s superintendent and as to the facts, it states merely that the affiant “is acquainted with the premises in controversy, and that the facts as set forth in the several paragraphs of the foregoing answer when made of his own knowledge are true and when stated upon information and belief, he verily believes the same to be true.” Nothing is needed to show the ineffectual character of this attempt at verification further than to refer to the fact that no statement in the answer purports to have been made as of the knowledge or the information of the affiant. Both in respect of its denials and its verification the answer was insfifficient to work a dissolution of the injunction or the stay of proceedings in the cause.

The decree appealed from will be reversed, and an order made re-instating the injunction and remanding the cause. The appellee will pay the costs of the appeal in' this court and in the city court.

Reversed and remanded.