Opinion
7 Div. 699.
March 24, 1927.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Goodhue Lusk, of Gadsden, for appellant.
Where the owner of lands has knowledge that a railroad company is proceeding to construct railroad tracks, etc., thereon, and allows the company to do so and expend large sums in improvements for such purpose, he will be estopped from ousting the company by ejectment. S. N. A. v. A. G. S., 102 Ala. 236, 14 So. 747; Southern R. Co. v. Hood, 126 Ala. 312, 28 So. 662, 85 Am. St. Rep. 32; Cowan v. Southern R. Co., 118 Ala. 554, 23 So. 754. The right to damages or compensation for the taking of land for railroad purposes accrues to the owner at the time of the taking and does not pass to his grantee. B. B. R. Co. v. Lockwood, 150 Ala. 610, 43 So. 819; Evans v. S. W., 90 Ala. 54, 7 So. 758; Roberts v. N. P. R. Co., 158 U.S. 10, 15 S.Ct. 756, 39 L.Ed. 873; N.Y. v. Pine, 185 U.S. 93, 22 S.Ct. 592, 46 L.Ed. 820; S. N. A. v. A. G. S., supra.
John B. Isbell and Chas. J. Scott, both of Ft. Payne, for appellee.
The bill fails to offer to make compensation and is without equity. Southern R. C. v. Hood, 126 Ala. 312, 28 So. 662, 85 Am. St. Rep. 32; Patterson v. A. C. L., 204 Ala. 453, 86 So. 20.
"It is a well-recognized principle that in order to subject the property of another for public use under the doctrine of eminent domain, the proceedings must be as prescribed by our Constitution and statutes, yet we also have a well-established rule that, while a railroad company has no right to enter upon and take the lands of another without his consent or without condemnation proceedings and just compensation for same, if it does enter and construct its track upon the land of another, and the owner has knowledge that the company is proceeding to locate and construct its road on his land, and he allows it to spend large sums of money on improvements for such purpose, he will be estopped from ousting the company by ejectment, if the company is willing to then make just compensation, such as its taking may involve. This rule is, of course, founded upon an equitable estoppel; and, while it protects the railroad from being ousted it does not estop the owner from claiming a just compensation, or relieve the railroad from the payment of same as a condition precedent of enjoining the ouster at law. Southern R. R. v. Hood, 126 Ala. 312, 28 So. 662, 85 Am. St. Rep. 32, and cases there cited." Patterson et al. v. Atlantic Coast Line Railroad Co., 204 Ala. 453, 86 So. 20.
The trial court sustained the demurrer to the bill of complaint upon the theory that it failed to specifically offer to pay the value or damages of or to the property taken and sought to be condemned. Whether such an offer in proper cases should be specifically made, or it would suffice to offer to do equity, as the trial court could require payment as a condition precedent to relief, we need not decide, for the reason that the appellee, Brown, the only respondent, is not entitled to same. It is well settled by the decisions of this and other courts that, for the taking or injury to land by the construction of a railroad, the measure of damages is the value or the diminution of the value at the time, and the right of action accrues to the then owner, which was the Kaolin Land Company, and does not pass to the respondent, Brown, the grantee of said company. Birmingham Belt R. R. v. Lockwood, 150 Ala. 610, and authorities cited on page 617, 43 So. 819, 821.
The trial court erred in sustaining the demurrer to the bill, and the decree is reversed, and one is here rendered overruling same, and the cause is remanded.
Reversed, rendered, and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.