September 28, 2021

 

BENSON v. PICKENS COUNTY

43 So.2d 113 (1949)

BENSON v. PICKENS COUNTY et al.

Supreme Court of Alabama.

October 20, 1949.

As Modified on Denial of Rehearing December 1, 1949.

BROWN, Justice.

This is a bill by a property owner in possession whose title is not in dispute against the County of Pickens, B. G. Robison, [43 So.2d 114]

     There is no pretense that said right of way was condemned by the county under its power of EMINENT DOMAIN. Code of 1940, Tit. 12, §§ 198, 199.

     If the county through its duly constituted authorities without the consent of the landowner whose title and possession is not disputed takes or undertakes to appropriate private property for public use, a court of equity will intervene and require just compensation to be made. East & W. R. Co. of Alabama et al. v. East Tennessee, V. & G. R. Co., 75 Ala. 275.

We quote from the opinion of the court: "* * *

     `Municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured or destroyed, by the construction or enlargement of its works, highways or improvements, which compensation shall be paid before such taking, injury or destruction.'

     It is most essential to the preservation of the rights of private property, to the protection of the citizens, and to the preservation of the best interests of the community, that all who are invested with the right of eminent domain, with the extraordinary power of depriving persons, natural or artificial, without their consent, of their property, and its possession and enjoyment, should be kept in the strict line of the authority with which they are clothed, and compelled to implicit obedience to the mandate of the Constitution.

     A court of equity will intervene to keep them within the line of authority, and to compel obedience to the Constitution, because of the necessity that they should be kept within control, and in subjection to the law, rather than upon the theory that they are trespassers, or that the injury which they are inflicting is irreparable. * * *" East & W. R. Co. of Alabama v. East Tennessee V. & G. R. Co., 75 Ala. 275, 281.

Affirmed. (ALABAMA SUPREME COURT)

FOSTER, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur.

NOTE: Title to the Holman House in Ozark is held without dispute by H. J. Mizell.

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