
    Southern Ry. Co. v. Hays, et al.
    
    
      Bill to Enjoin the Taking of Property before Just Compensation Made.
    
    (Decided April 9, 1907.
    43 So. Rep. 487.)
    1. Eminent Domain; Injunction. — A bill will lie to enjoin the taking of property under the power of eminent domain until just compensation is made, without reference to the solvency or insolvency of the party exercising the right, and' without reference to the adequacy or inadequacy of legal remedies.
    2. Deeds; Construction; Right of Posthumous Children. — A deed which conveyed certain lands, “to II. and her two children B. and C., and any succeeding heirs of her body, * * * to have and to hold to II. and her children and their heirs and assigns forever,” conveyed the land to I-L, her children then living and those born to her after the execution of the deed.
    3. Adverse Possession; Color of Title; Defective Deed. — Although the deed may have been defective under which defendants claim, by reason of not being joined in execution by the grant- or’s husband, yet it was color of title, and if complainants were in possession .of the lot and held it as their own under the deed for ten years, or longer, prior to defendants trespass, complainants have title thereto.
    4. Equity; Pleading; Demurrers. — Where the objection sought to be raised by a demurrer goes to only one paragraph of the bill, and the demurrer is interposed to the bill in its entirety such demurrer is properly overruled.
    Appeal from Morgan Chancery Court.
    Heard before Hon. W. IT. Simpson.
    Bill by Fannie Hayes and others against, the Southern Railway Company. From a decree for complainants, defendant appeals.
    Affirmed.
    This was a bill exhibited by Fannie Hayes, and Clifton, Bessie, Stella, Walter, Minnie, Arthur, Lucile, and Memory Hayes, by Fannie Hayes, next friend, against the Southern Railway Company. The allegations of the bill are that the complainants hare been the owners in fee simple of a certain parcel of ground in tlie city of Decatur which abuts on the southeastern side of a cut or depiession in which is located a part of the line of railway of respondent. The said strip or parcel of land is described in the deed which is attached to the hill as an exhibit, and it is averred that complainants are the owners in fee of all of said lot inclosed within the fence hereinafter refeired to; that there is and has been for many years on said lot a building, now used as a dwelling house and formerly used as a hotel or house of entertainment, which sets back some 10 or 20 feet from the edge of the cut, and along or near the southeastern side of the property, and upon the top of said cut there was, and had been for more than 20 years, a line of fence which had been maintained by complainants and their predecessors in title; that on the 5th day of September, 1900, while complainants were so in possession of said real estate and while occupying the same as ahorne, sundry and divers agents, employes, or contractor's of the defendant railroad company entered upon that part of the said real estate next and nearest to said cut, and without the consent of the complainants, or any of them, demolished and removed all of said fence, cut down one of the shade trees in the yard, and tore and removed a portion of the surface of said real pstate, Avhich constituted a. part of the yard of the aforesaid dwelling house, and very near to some houses on said property occupied by tenants of complainants; that the strip of ground upon Avhich said depredations Avere committed Avas about 6 feet in Avidth at the south end and about 10 feet Avide at the north end, and extending a.cro'vs said property the length of about 150 feet; that during the depredations aforesaid, complainants protested and expostulated, but Avithout a Anil Avitli said agents, etc,., and complainants believe and fear that they Agill continue tlieir Avork of grading and excavating along the Avhole length of the lot, and cut it down so as to conform to the grade now existing at the bottpm of the cut. It is alleged that the value of the property and the damages groAving out of the trespass will not exceed $1,990, and the complainants will not claim more than that. It is alleged that the respondent is a railway coi'porcttion, with the right of eminent domain, and has not, paid, or tendered or offered to pay, complainants anything in compensation for the depredation, it .is further alleged that all the complainants, except Fannie Haves, Clifton Hayes, Bessie Hayes, and Thomas Ilayes, are children of Fannie Hayes, born after the execution of the deed made an exhibit to the hill. It is alleged that the defendant, in doing the wrong complained of, was preparing and undertaking to add to its line of railway a side track, or to move its present track, and thus was undertaking to subject this property to its uses and purposes as railway company property, and thus was seeking to take the private property of complainants without condemnation and without, jlaying therefor. The prayer was for a temporary injunction against the further depredation upon the property for any purpose, and at the final hearing a immanent injunction for the same purpose, and for damages for depredations already committed. There were demurrers to the bill, pointing out that there was a plain and adequate remedy at law; that it did not appear that defendant was insolvent; that it appeared that none of the complainants, save Fannie Hayes, Bessie Hayes, and Clifton Hayes, had any interest in or title to said properly, and therefore the complainants were not jointly entitled to maintain the hill; that it appeared that the deed was rroid, not having been separately acknowledged by Winnie Parker. There was also motion to dismiss the hill for want of equity, and to dissolve tin1 temporary injunction for want of equity in the bill,.all of which were overruled. The habendum clause in the deed is sufficiently .set. out in the opinion of the court. The chancellor overruled the motion to dismiss and the dv-murrers, and refused to dissolve injunction.
    Humes & Speake, for appellant.
    The complainant has a plain and adequate remedy at law and the first four grounds of demurrer, the motion to dismiss for want of equity and to dissolve the injunction should have been sustained and granted. — Drnniss v. M. & Hi. J\. R. 
      
      Co.. 137 Ala. 649. An injunction avüI not lie to prevent a trespass such as alleged in this bill. — Dcenun v. Ne-ville, 127 Ala. 471; H. A. & B. Ry. Co. v. B. "ü. Ry Co., 93 Ala. 505. As to adver.se possession see Bolling v. M. & M. Ry. Co., 128 Ala. 556; Robinson v. Allison. 124 Ala. 325; Wilkinson v. Lehman, 136 Ala. 468; 1 Oye. p. 2001; 1 A. & E, Encv of Luav, p. 842. As to pie,sumption see 22 A. & E. Encv of Law, pp. 1238-1241 and 1244. As to the construction of the deed made in exhibit lo the bill, see Wlison v. Alston, 122 Ala. 630; Slayton r. Blount, 93 Ala. 575. Winnie Parker, Avho conveyed the land to Hayes and others, Avas the mother of Fannie Hayes, and the deed itself mentions the property as her homestead. Under such circumstances, she is presumed to he married, and having been mauled, the presumption is that her husband was living at the time of the execution of the deed. If the land was hers, the husband should have joined. If the land was the husband’s she. should have acknowledged the same separately.
    E. AY. Godby, and Broayn & Kyle, for appellee. — No brief came to the Reporter.
   TYSON, C. J.

The hill in this cause is exhibited to secure to the complainants the constitutional guaranty of “just compensation” to he paid before their pioperty shall he taken, injured, or destroyed by the respondent, AA'liich is empowered Avitli the right of eminent domain under the laAvs of this state. The right to maintain such a bill, AA’ithout regard to the solvency of the respondent or ihe adequacy or inadequacy of legal remedies, has been too fairly established by the decisions of this court to noAV admit of serious discussion—Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 129, 24 South. 368; Mobile & Montgomery Ry. Co. v. Ala. Midland Ry. Co., 123 Ala. 145, 26 South. 324; City Council of Montgomery v. Lemle, 121 Ala. 609, 25 South. 919; Niehaus v. Cooke, 134 Ala. 223, 32 South. 728; Coyne v. Warrior Southern Ry., 137 Ala. 553, 34 South. 1004.

The deed fiom Winnie Parker to “Fannie Hayes and her two children, Bessie Thomas (Hayes) and Clifton Hayes, and any succeeding heirs of her body,” to the lot a portion of which was being appropriated by the respondent, does not, as is contended by appellant, exclude the right of the after-born children of Fannie Hayes, who are also made complainants to the bill, to an inteiest in the property. If there were no other Avords in the deed indicative of an interest on the part of the grantor that after-born children of Fannie Hays should take as tenants in common AA'ith their mother, Bessie Thomas, and Clifton, than the Avords “any succeeding heirs of her (Fannie’s body,”) Ave would perhaps be constrained to hold that these Avords are Avords of limitation, and not of purchase, and that such after-born child Avould take nothing under the deed.—Slayton v. Blount, 93 Ala. 575, 577, 9 South. 241. But when these words are construed in connection AAdth the habendum clause in the deed, to Avit, “To have and to hold to Fannie Hayes and her children and their heirs and assigns, forever,” Ave are of the opinioa that the grantor used the Avords first above quoted as meaning children. In other words, it Avas her intention to give the lot to Fannie and her children then living and those that may be born to her after its execution.—Sullivan v. McLaughlin, 99 Ala. 60, 11 South. 447; Campbell v. Noble, 110 Ala. 382, 19 South. 28; Watson v. Williamson, 129 Ala. 362, 30 South. 281; Findley v. Hill, 133 Ala. 229, 32 South. 497.

Conceding, without deciding, that the presumption Avill he indulged, that the deed is Amid because its execution Avas not joined in by the husband of Winnie Parker, it being further presumed that she had a husband at the date of its execution, it is certainly color of title; and if the complainants are in possession of the lot, and haArn held it as their OAvn under the deed for 10 years or longer prior to the trespass by defendant, they have the title to it.

This disposes of the motion to dismiss and all the grounds of demurrer insisted upon adAmrsely to appellant, except the seventh. As the objection sought tc be raised by it goes only to the averments of paragraph 11 of the bill as amended, and as the ground was interposed to the biil in its entirety, it was properly overruled.—5 May. Dig. p. 345. But, aside from this, we find no such repugnancy in paragraph 11 as is attempted to he i-aised by it.

The decree appealed from must he affirmed.

Dowdell, Simpson, and Anderson, JJ., concur.  