[Mobile & Montgomery R'y Co. v. Alabama Midland R'y Co.] passer, or necessity to avoid multiplicity of suits, &c., but rests on other and different considerations. However the bill may be tested, it is not without equity.

The principle for which we contend has often been recognized in our decisions, and is the inevitable offspring of provisions for the first time appearing in the organic law of 1875.-Constitution of 1875, section 7, Article XIV. This section of the Constitution, by its own unaided force, confers new rights upon property owners, and imposes new duties and additional restraints. upon corporations, invested with the privilege of taking property, &c. It gives compensation, not only for the property taken, but also for consequential injuries resulting from the taking; and provides further, that neither the taking nor the injury shall occur unless compensation be first paid. It is clear that this provision of the Constitution contemplates there shall always be "preliminary assessment of damages, and payment thereof in advance, as conditions precedent to any lawful taking or injury. Without the doing of these things in advance, no matter how clear the right may otherwise be to condemn, or what the powers of the corporation, the taking or injury is unjustifiable and illegal; and will be restrained, without regard to the ordinary considerations upon which courts act in such cases; because it is the only way in which obedience to the Constitution can be compelled. Where complaint is made of corporate interference with the franchises of a public or quasi public corporation, the equity of the bill arises not only from the necessity of protecting the franchises against unlawful interference, but as well from the necessity of confining corporations within the limits of their charters and to prevent usurpation of their power to the injury of or in violation of the rights of the property owner.-Mayor v. Rogers, 10 Ala. 37; Port of Mobile v. L. & N. R. R. Co., 84 Ala. 115; W. U. T. Co. Judkins, 75 Ala. 430; E. & W. R. R. Co. v. E. T., V. & G. R. R. Co., 75 Ala. 275; C. & W. R. R. Co. v. Witherow, 82 Ala. 190.

v.

A. A. WILEY and CHAS. WILKINSON, contra.-1. Complainants, in filing their bill of complaint in this cause, proceeded upon the idea that the City Council of Montgomery by ordinance had vacated, abandoned and dis

[Mobile & Montgomery R'y Co. v. Alabama Midland R'y Co.] continued the use of River street; that thereby title to the north half of said street reverted eo instanti to themselves as abutting land owners, and that they could by injunction proceeding obtain possession of and title to an undivided one-half interest in and to said streets, together with the improvements thereon, including the track laid along said street owned by defendant, under permission and authority of the City Council of Montgomery. In short, this injunction proceeding on the part of the complainants is in the nature of an action of ejectment to recover possession of an undivided one-half interest in and to River street, together with the improvements thereon, and to oust defendant therefrom, although in possession thereof under grant and authority of the City Council of Montgomery. It is plain, therefore, that injunction will not lie for the reason that, if complainants' contention be true, they have an adequate and complete remedy at law.-A. & C. R. R. Co. v. J., G. & A. R. R. Co., 82 Ala. 297; Boulo v. R. R. Co., 55 Ala. 480; M. & G. R. R. Co. v. Ala. Midland R. R. Co., 87 Ala. 508.

2. The city has no authority under its charter to abandon River street.-2 Dillon Munic. Corp., $675; 1 Wharton (Pa.) 569; Mayor v. Morris C. & B. Co., 12 N. J. Eq. 557; Elliott on Roads, 667. The charter of Montgomery grants unto the city council the power "To establish, open, alter, widen, extend, grade, cut down, fill in, pave, or otherwise alter or improve all streets, avenues, side-walks, alleys or wharves, public grounds or squares."-Charter, page 14, City Code. "To authorize the use of the streets of said city for horses, steam or electric railroads, and regulate same."

Originally the courts were inclined to hold a distinction between a simple dedication-i. e. a street set off by the owner without a deed to the city-and a statutory dedication, so-called in some of the States, acquired by right of eminent domain, or express grant. But in each of these cases, if the sovereign power directly or through a municipal corporation, grant the right to construct a railroad track, and run trains on or over such public street, this is a legitimate exercise, of the police power, inherent in the State, and the changed use of the street ceases to be a public nuisance of which any one

[Mobile & Montgomery R'y Co. v. Alabama Midland R'y Co.] can complain.—Barney v. Keokuk City, 94 U. S. 324; Perry v. R. R. Co., 55 Ala. 425.

3. Courts of equity should not stop a great public improvement like a railroad, at the instance of a party whose damage is nominal, if at all. Complainants have not been deprived of one inch of land heretofore occupied by them; nor have they been deprived of the use of their property for railroad purposes.-Schurmeier v. R. R. Co., 83 Amer. Dec. 770; Zabriskie v. R. R. Co., 13 N. J. Eq. 314; Baraem v. R. R. Co., 40 N. J. Eq. 557.

4. It is declared that where a railroad, under legislative and municipal grant, constructs a road on a street in a city, the fee to which is in the proprietors of the property abutting thereon, such railroad is not a trespasser, nor its railway an unlawful obstruction, nor a nuisance upon such street; and that an injunction will not lie in favor of such proprietor, to restrain the construction and operation thereof.-Western Railway v. Ala. G. T. R. R. Co., 96 Ala. 272, approving Perry v. R. R. Co., 55 Ala. 413.

5. When the facts show that an injunction might operate greatly to the prejudice of defendant, as well as the public, without corresponding advantage to the complainants, the parties will be left to their remedies at law and the writ should not issue.-H. A. & B. R. R. Co. v. Bir. Un. R. Co., 93 Ala. 505; High on Injunctions, 598; Western Railway v. Ala. G. T. Railway Co., 96 Ala. 272.

HARALSON, J.-The principles involved in this litigation have been the subject of repeated consideration and adjudication in this court. We may, for the purposes in hand, so far as is deemed necessary, summarize the result of these decisions-in harmony with decisions elsewhere, and with the text writers on the subject.

The rights of property in the public streets of a city, as has been held, are of two classes. The one, when there has been, by the owner of the land, a simple dedication of a part of the land as a street or public highway, without any conveyance of title, in which case neither the government, the municipality nor the public acquires any other interest than an easement, the ultimate fee remaining unaffected by the dedication; and the other, where dedication has been made and the fee

[Mobile & Montgomery R'y Co. v. Alabama Midland R'y Co.] conveyed by the owner to the municipality. In Perry v. N. 0. M. & C. R. R. Co.,55 Ala. 424, referring to these two 'classes, the court said: "But, in each of these classes of cases, if the sovereign power grant the right to construct a railroad track and run trains on or over such public street, this is a legitimate exercise of the police power inherent in the State, and the changed use of the street ceases to be a public nuisance of which any one can complain. See an able discussion of this subject in Barney v. City of Keokuk, (4 Otto,) 94 U. S. 324. When, however, under the first named of the above classes, the ultimate fee remains in the land proprietor, the municipal government cannot confer on a railroad corporation, the right to convert a public street into a road-bed for its own use, unless the charter of such municipality or some other legislative authority, confer on it the power to do so."―The State v. the Mayor, 5 Port. 279. In the case referred to in 4 Otto, it was held that there is no substantial difference between these two classes of streets, -in which the legal title is in a private individual, and those in which it is in the public-as to the rights of the public therein.

Again it was said in Perry's Case, supra: "When a street (of the first class named) thus dedicated, is improperly obstructed, or perverted to a use other than for which it was dedicated, the owner of the fee has left in him sufficient title or right to prevent or redress the wrong; and for this purpose the general rule is, that the owner of the attingent property is the owner of the ultimate fee, extending to the centre of the street. See Cincinnati v. White, 6 Peters, 431; Dillon on Munic. Corp. $$ 493, 495, 496, 500, 524." The complainant in Perry's Case was allowed to maintain the bill, on its averments, for the reason that no express provision was found in the charter of Mobile, authorizing the city authorities to grant, as they had done, to the railroad company, the right to lay its track on the streets of the city, a power which could not be exercised, unless conferred either expressly or impliedly by the legislature.-3 Elliott on Railroads, §§ 1076-1079.

In Columbus & W. R. Co. v. Witherow, 82 Ala. 190, the complainant sought to enjoin and restrain the defendant from the further construction of an embankment in one of the streets of the town of Leeds, on the ground that

[Mobile & Montgomery R'y Co. v. Alabama Midland R'y Co.] the embankment would be a public nuisance, and would. greatly injure and depreciate the value of two town lots owned by complainant, who was an adjacent owner, claiming a right to the center of the street. The bill alleged that the defendant had never paid or offered to pay complainant any compensation for the damages to her said property by the construction of said road, and there had never been any agreement between them fixing the compensation to be paid her therefor. A motion to dissolve the injunction that had been granted, for want of equity, and on the denials of the answer, was overruled. This court held that the bill on its face contained equity. "Taking these facts to be true, [as the court said], the authorities are numerous in support of the bill. Unless authorized by some law, in consonance with the provisions of the constitution, such use of the public streets of an incorporated town presumptively would be unauthorized by the original dedication, and would prima facie be a special damage to the complainant, which could be restrained by injunction at her instance, she being an adjacent property owner." In that case, the provision of section 7 of Article XIV of the constitution, prohibiting the taking of private property by municipal or other corporations, without making just compensation for the property taken, injured or destroyed,-such compensation to be paid before such taking, injury or destruction,was duly considered. This court overruled the decree of the court below, and rendered a decree providing for a dissolution of the injunction upon the defendant furnishing security deemed adequate for the damage it might do in the erection of said embankment. The court said: "The proceeding is one in restraint of a public work of great utility—the construction of a railroad—thus presenting a case in which injunctions are granted with great caution. Delay in the construction of the work may operate very oppressively against the defendant, as well as result in great injury to the public. Courts very often, in such cases, balance the question of damages to the one party and that of benefit to the other, resulting from the maintenance of the injunction, on the one hand, and its dissolution, on the other, and refuse to take any action which will cause great injury to one party and probably be of serious detriment at the same time to the public without corresponding advantages to the other