East Tennessee, Virginia & Georgia Railroad v. Southern Telegraph Co.

delivered the opinion of the court. He stated the facts in the foregoing language, and continued:

The value of the matter in dispute in this court is the difference between the amount of compensation claimed by the railroad company on its intervention and the amount assessed by the jury. Hilton v. Dickinson, 108 U. S. 165. There is nothing in the record to show that the alleged value of the property is not the true measure of the compensation to be assessed. As this amount is $12,000, and the jury allowed only $500, it follows that the value of the matter in dispute is sufficient to give us jurisdiction.

This is a proceeding under the statute of Alabama to ascertain the amount of compensation to be paid the railroad company for the appropriation of its property to the uses of the *310 telegraph company. That is the single question to be settled. The remedy is statutory only, and every court which takes jurisdiction for its enforcement is limited in its powers by the statute under which alone it can act. It must be assumed for all the purposes of the proceeding that the telegraph company has the right to make the appropriation, and that as soon as just compensation is made it may enter on the property and put up and work its lines. Tt is a proper exercise of legislative power to provide a way in which the amount of compensation shall be ascertained where the parties are themselves unable t<5 agree. In Alabama this is to be done by a jury empanelled in a Probate Court or in a Circuit Court. The'.legislature might have made the action irf these courts final, and not subject to review on appeal or writ of error. If that had been done, the assessment of the jury, when recorded in the proper court; would settle finally the amount of compensation to be paid for the appropriation, unless the assessment should be set aside for fraud or other sufficient cause in some appropriate independent proceeding instituted for that purpose. Put it has been provided that an appeal may be taken “ to correct errors of law only,” the effect of which shall not be, however, to prevent the appropriating company from taking immediate possession and proceeding with its works on payment into court of the sum allowed by the jury.

The courts of the United States, on the removal of the proceeding from the Probate Court, were clothed with no greater power in the premises than the courts of the State would have possessed if their jurisdiction had been preserved. It follows that, as an appeal from the Probate Court to the State Circuit Court, or to the Supreme Court, would not' have operated to prevent the telegraph company from taking possession of the property appropriated, and erecting its wires pending the appeal, the supersedeas on a writ óf error from this court' to the Circuit Court of the United States should be limited in the same way. This provision of the statute is by no means an unusual one, and was intended to prevent delays in the progress of a public work,while the parties were litigating in the higher courts as to the correctness of a preliminary assessment of com *311 pensation to be paid an owner of property taken for tbe public use according to the forms of law.

The motion to dismiss because the value of the matter in dispute does not exceed $5,000 is denied/ but it is ordered that the supersedeas upon the writ of error from this court shall¡ not, dtmng the pendency of the writ, pi'event or hinder the telegraph compawy from occupying the premises appropriated for its use and proceeding to erect and operate its line of telegraph thereon, after it has paid into the Circuit Court, for the person or corporation entitled thereto, the.amoxmt of damages and. compensation assessed by the jury empanelled in the Circuit Court.