City Council of Montgomery v. Lemle

121 Ala. 609

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

McCLELLAN, C. J.

— Under constitutional guarantees the property owner has an absolute right to compensation for property proposed to be taken and for injuries proposed to be done to property in the exercise by a municipal corporation of the right of eminent domain before the property is taken or the injury to the property is done; and to the effectuation of this right, he has a remedy in equity, by invoking the injunctive aid of a court of chancery wholly regardless of the solvency or insolvency of such corporation, and of the inquiry whether he could recover and realize compensatory damages in an action at law or not. It is the expressed intent of the organic law that no property shall be taken or ifijured until the owner is compensated therefor, and every consideration of public policy and of abstract right requires that this intent should be strictly conserved by the courts, whether in a given case the owner would have a remedy at law for the damages resulting to him from the contemplated taking or injury or not.—Const. Art. 14, § 7; East & West. Railroad Co. v. East Term. Va. & Ga. Railroad Co., 75 Ala. 275.

Tbe case of Winter v. City Council of Montgomery is not on tbe point involved in tbe case at bar.

The bill makes a case for the injunctive relief prayed on the principle above stated, tbe answer does not deny any fact material to complainant’s right to that relief, and the decree overruling respondent’s motion to dismiss the bill for want of equity and to dissolve the injunction must be affirmed.