Stiles v. Tennessee Coal, Iron & Railroad

129 Ala. 671

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

This is an apeal by appellant from the proceedings and orders of the city conrt, Hon. Charles A. Senn, presiding, granting a writ of prohibition against appellant, by which appellant was prohibited from proceeding with a condemnation of land for right of way for railroad purposes, on application of the Birmingham Southern Railroad 'Company, over the lands of the Tennessee Coal, Iron & Railroad Company, in Jefferson county, Alabama.

The Birmingham Southern 'Railroad Company instituted proceedings in the probate court to condemn certain lands of the Tennessee Coal, Iron & Railroad Conipay for a right of way to build its line to the coal mines of- the Republic Steel & Iron Company. At the hearing of the cause the probate court made an order granting the application, as-.provided by section 1717 of the Code. The Tennessee Coal, Iron & Railroad Company took an appeal from the order granting tie application to this conrt.

Notwithstanding the appeal by the Tennessee Company, the probate judge, the appellant here, proceeded to appoint the comanissoners to assess the damages and compensation, as provided by section 1718 of the Code.

Thereupon the Tennessee Coal, Iron & Railroad Company applied to the city court of Birmingham for a writ of prohibition to the appellant, 'commanding' and prohibiting him from further proceeding with ¡said cause or making any order therein until the appeal to this court is decided.

A rule to show cause was issued to the appellant, who came into court and filed an answer, demurrer and plea to the petition. Upon the hearing of the cause, the city court, Hon. Charles A. Senn presiding, ordered the writ of prohibition issued, in accordance with the prayer of the petition. From this judgment the cause is brought here by appeal for review by this court.

The: judgment of the city court is affirmed on the authority of Bir. R. & E. Co. v. Bir. T. Co., 121 Ala. 475, in connection with B. R. & E. Co. v. Bir. T. Co., 128 Ala. 110; and So. R. Co. v. Bir. S. & N. O. R. R. Co., MSS.

Opinion by

McClellan, C. J.