Condemnation proceedings under the law of eminent domain are wholly statutory. Prior to the Code of 1923 our statute touching parties respondent, so far as here pertinent, merely provided:
The application * * * must state the name and residence of the owner, if known." Sec. 1713, Code of 1896; sec. 3861, Code of 1907.
"The court, * * * if the owner of the land resides in the state, must issue to him notice of the application." Sec. 1714, Code of 1896; sec. 3862, Code of 1907.
The inadequacy of such provision had appeared in such cases as New Old Decatur B. T. R. Co. v. Karcher, 112 Ala. 676,21 So. 825.
In the Code of 1923, Secs. 7478 and 7479 (now Secs. 3 and 4, Title 19, Code 1940), these statutes were amended to read:
"The application must * * * state the names and residences of the owners of each tract and any other parties claiming or holding any right, title, or interest therein, if known." *Page 571
"The court * * * must issue to all the owners of such lands and to such other parties as claim or hold any right, title, or interest therein, as reside in this state, notice of the application."
Note that "claims or holds" is in the alternative. "Claims any right, title, or interest" or "holds any right, title, or interest." One who "claims any right, title, or interest" is to be brought in whether he actually "holds any right, title, or interest" or not. Why?
The reason is found in the prompt and orderly conduct of the proceedings in accord with the entire statutory scheme. The objective is to acquire the title or an easement in the property of others for public use on payment of just compensation. The chief concern of the condemnor is to bring in all parties to assure the acquirement of such easement and his prompt right of entry. Claimants not brought in are not bound by the proceedings, and the condemnor has the hazard of a multiplicity of suits to perfect his estate. Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49.
The nature and validity of any claim is an issue between the parties respondent. There is no issue between condemnor and respondent as to the interest of respondents. This issue, by express statute, does not arise until the right of the condemnor to take the land and the just compensation therefor have been adjudicated and the compensation paid into court. Even then, the probate court having no jurisdiction to try titles to land, it may become necessary to transfer these issues to a court of competent jurisdiction, all of which is prescribed by statute. Secs. 26 and 27, Title 19, Code of 1940. Meantime, the condemnor has perfected his right of entry and may go on with his improvements.
It follows that the probate court, upon appearance of a claimant seeking to be made a party on the initial hearing, is without jurisdiction to inquire into and pass upon the nature and validity of the claimant's right, title, or interest in the property. His conclusion on such ex parte proceeding can bind no other respondent.
In some jurisdictions it appears the conflicting claims of respondents are to be litigated before condemnation, but not so under statutes like ours. 20 C.J. § 336, pp. 919, 920; Ib. § 296, p. 864; 29 C.J.S., Eminent Domain, §§ 236, 205.
When petitioner, appellant here, appeared in open court on the initial hearing, made known that he was a claimant of an interest in the items of property involved, it became the duty of the court to enter his appearance and make him a party. He would thus become a party to ligitate the validity of his claim at the time and place designated by statute. This, in my opinion, is the clear mandate of the statute. His appearance as a party added no issues as between condemnor and respondents.
The question is important. It seems not to have been considered in former cases in this Court.
The above construction avoids tying up the condemnation proceedings to litigate ancillary questions, as illustrated in the instant case. It is not a question of intervention in the ordinary sense, but of statutory duty of the court when one makes himself known as a claimant to some interest in the property.
Mandamus is the proper remedy to review interlocutory rulings in the absence of remedy by appeal. It becomes merely a question of error vel non; aims to define the course the court should have pursued and command its performance.
In my opinion, the petition for mandamus was not subject to demurrer regardless of the aptness of the demurrers assigned.
On this ground, I concur in the reversal of the judgment below and remandment of the cause.