McCulley v. Cunningham
Supreme Court of Alabama
Appeal from the Circuit Court of Calhoun. Tried before the Hon. LeRoy F. Box. On July 1, 1891, tbe appellant, W. F. McCulley, filed with tbe probate judge of (,’alboun county bis petition for authority to erect a dam across Ohoccolocco creek in said county, “for tbe purpose of building and operating a grist-mill and other machinery on tbe north bank of said creek.”
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Appeal from the Circuit Court of Calhoun. Tried before the Hon. LeRoy F. Box. On July 1, 1891, tbe appellant, W. F. McCulley, filed with tbe probate judge of (,’alboun county bis petition for authority to erect a dam across Ohoccolocco creek in said county, “for tbe purpose of building and operating a grist-mill and other machinery on tbe north bank of said creek.” Tbe petition alleged tbat tbe appellees, G. L. Cunningham and E. J. Lee, owned about one acre of land “spanning said creek about 250 yards above where petitioner proposes to erect bis clam;” and they were notified of said…
1Opinion of the CourtThorington, J.
The jurisdiction conferred by sections 3184-3206 of the Code on the judge of probate to authorize the erection of dams for water grist-mills, saw-mills, gins or factories, is special and limited, and can be supported only when the record shows affirmatively every fact necessary to uphold the jurisdiction. The right conferred by the statute is the exercise of the power of eminent domain, and involves the taking of private property, as much as if lands were taken. Under the limitations of the Constitution, no such right can be exercised unless the mill or other structure specified in the…
2Cases cited4 opinions
- McAllilley v. HortonSupreme Court of Alabama · 1883
- Martin v. RushtonSupreme Court of Alabama · 1868
- Bottoms & Powell v. Brewer & BrewerSupreme Court of Alabama · 1875
- Rushton v. MartinSupreme Court of Alabama · 1869
3Cited by15 opinions
- Greek v. Sloss-Sheffield Steel & Iron Co.Supreme Court of Alabama · 1922
- Ex parte DickensSupreme Court of Alabama · 1909
- Ex parte Louisville & Nashville R. R.Supreme Court of Alabama · 1912
- Ex Parte BankheadSupreme Court of Alabama · 1917
- City of Birmingham v. ReedAlabama Court of Appeals · 1949
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