This is an appeal from an order denying an injunction after a hearing on the verified bill of complaint.
Mobile County determined that certain lands belonging to appellant should be condemned for the construction of a road. The lands were described as Parcel 2, Parcel 3 and Parcel 4.
After the institution of the condemnation proceedings, it was determined that the description of Parcel 2 should be amended and it was amended by resolution on May 15, 1961, which resolution is made an exhibit to the bill. Parcels 3 and 4 were
The hearing was had at the probate court, commissioners appointed and they assessed damages for Parcels 2, 3 and 4, and the order of condemnation for all three parcels was entered. Mobile County then paid the necessary money into court, made bond and began the construction of the road.
This action was brought to enjoin the county from constructing the road because appellant contends that the failure to mention Parcels 3 and 4 when the description to Parcel 2 was amended meant that the county governing body had found that Parcels 3 and 4 were not necessary and, therefore, the minutes showed that only Parcel 2 was subject to condemnation. The trial court denied the application for injunction.
Appellant does not question the sufficiency of the petition for condemnation nor the regularity of the condemnation proceedings, but states that the "quarrel is with the basic premise that the condemnor must propose to take the lands." It argues that the county commission did not choose to exercise its right of eminent domain or authorize the condemnation of Parcels 3 and 4, and having failed to exercise such rights, it cannot now be heard to say it acquired any right, title or interest in appellant's land.
Our cases do not sustain the appellant's contentions. In Dean v. County Board of Education, 210 Ala. 256, 97 So. 741, 743, the landowner argued that "there was nothing before the court to show that the appellee had ever determined that the property was necessary for school purposes." This court said:
The record before us does not purport to show all the proceedings of the county commission relative to this project, nor does it show the petition for condemnation. But in brief, appellant states "* * * In obedience to the new resolution and finding of necessity, the County attorney amended the condemnation application by amending the description of Parcel #2 to conform to the land found necessary for the road. This amendment, however, failed to delete from the application Parcel #3 and #4." And the bill shows that the commission prosecuted the amended petition to condemnation, that Parcels 2, 3 and 4 were condemned, and that appellant has appealed to the circuit court.
In Stout v. Limestone County, 211 Ala. 227, 100 So. 352, 354, this court said:
We find no reversible error in the action of the circuit court in denying the application for injunction.
In view of what we have said, it is not necessary to decide whether injunction is the proper remedy.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.