City of Mobile v. McClure

• Decision Date: 10 April 1930
• Docket Number: 1 Div. 592.
• Citation: 221 Ala. 51,127 So. 832
• Parties: CITY OF MOBILE v. MCCLURE.
• Court: Alabama Supreme Court

127 So. 832

221 Ala. 51

CITY OF MOBILE v. MCCLURE.

1 Div. 592.

Supreme Court of Alabama

April 10, 1930

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by M. S. McClure against the city of Mobile. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

Vincent F. Kilborn, of Mobile, for appellant.

Frank J. Yerger, of Mobile, for appellee.

FOSTER J.

This is an action at law by the owner of property abutting upon a street for damages claimed by reason of the felling of a shade tree situated on the sidewalk in front of plaintiff's residence.

The fundamental questions of law which are involved have been settled in this state, and need no further discussion. Briefly stated, they are: (1) That if the tree was cut by the city while engaged in the construction or enlargement of the works, highways, or improvements of the city, and the property of the lot owner is thereby injured or destroyed the city is liable in damages to the extent of an amount which would award just compensation therefor. Const. § 235; McEachin v. Tuscaloosa, 164 Ala. 263, 51 So. 153; Birmingham v. Graves, 200 Ala. 463, 76 So. 395. (2) That if the tree is cut in the exercise of the police power of the city, in caring for the health, comfort, and general welfare of the inhabitants thereof, and was not an arbitrary corrupt, or a manifest abuse of the right of such police power, and not rendered in an improper or negligent manner the city is not liable in damages for doing so. Birmingham v. Graves, supra; Southern Bell v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; 4 McQuillin, Municipal Corporations (2d Ed.) § 1431; 38 Cyc. 528.

This case was apparently tried in the circuit court with a proper understanding and interpretation of those principles.

But an important question of pleading is assigned for error: The sufficiency of the complaint against demurrer. It alleges that there was a tree on the sidewalk, a part of a public street of the city; that defendant's servants, etc., in the line of their authority as such, etc., cut down and destroyed the tree, thereby causing a depreciation in the value of plaintiff's property; and that this was wrongful, in that defendant did not make just compensation for same, and that no compensation has been made plaintiff.

The demurrers sufficiently raise the objection that there is not shown the duty to make compensation, because it is not alleged that it was done under the power of eminent domain, nor that it was an abuse of the police power. It is said that the complaint is an exact copy of that held good in Alabama Power Co. v. Christian, 216 Ala. 160, 112 So. 763. That may be true, and it may still be subject to demurrer in this case. There the suit was against a private corporation vested with the right of eminent domain, but with no police power or any other apparent right to cut the tree. When against such a corporation, those allegations show an apparent wrong, either no semblance of right, or the use of eminent domain without making compensation. The opinion in that case states that in such complaint the plaintiff "claimed damages done to his property in the exercise of the right of eminent domain." There was open no other interpretation of defendant's conduct. That could not be the interpretation of such complaint against the city, because the city may have had the right to cut the tree by reason of its police power, if not improperly exercised. In view of the fact that the complaint does not undertake to say that there was any impropriety in the exercise of the police power, nor an attempt to use its right of eminent domain, but that the only wrong done was the failure to pay compensation, we are left to conjecture or to assume in what respect plaintiff claims the city acted wrongfully wherein her rights were infringed. It is not a trespass or other wrong for a city to fell a tree standing in the sidewalk, unless more is alleged. Its liability in such event is dependent upon the further condition that such conduct was arbitrary, unreasonable, corrupt, improper, negligent, or wrongful for some other reason, unless it is a use of the right of eminent domain. It was not prima facie wrongful. If one's conduct is actionable only when certain conditions exist, the burden is upon plaintiff so to allege and generally to prove them. If the foundation of the wrong is that the conduct was negligent or corrupt or wanton, the universal rule is that such negligence, corruption, or wantonness must be alleged and generally proved. This is upon the idea that there is no actionable conduct without such conditions. They are of the essence of the action.

While there is no averment that the city acted under its police power, there is none that it was acting otherwise, and the presumptions are against the pleader. We have come to the conclusion that the burden of averment in this respect was upon plaintiff, and that the complaint was subject to the demurrer.

But that does not mean necessarily that the burden of proof was upon plaintiff in this respect. The court charged the jury that the burden was on the defendant to justify its right to cut down the tree, and appellant excepted to this charge. The burden would ordinarily be upon the plaintiff to prove such averments as are of the essence of the action, though they include a negative, unless the knowledge of such facts is peculiarly possessed by defendant, for in such event there is an administrative presumption against defendant on that issue. This continues in effect until defendant has offered evidence to the contrary. Cruse-Crawford Mfg. Co. v. Rucker (Ala. Sup.) 123 So. 897; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Louisville & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Somerall v. Citizens' Bank, 211 Ala. 630, 101 So. 429; 22 C.J. 81.

The authorities show that there has not always been applied a clear distinction in this connection between the burden of proof, and the burden of going forward with the evidence to overcome this presumption. Starks v. Comer, 190 Ala. 245, 67 So. 440; Lawson v. Mobile Elec. Co., supra; Somerall v. Citizens' Bank, supra.

The court in the instant case stated that the "burden" was on defendant here. This is technically true. We think, however, that the interchange of such terms would not have material effect in charging the jury. Though it would be well to explain to them the effect of this situation as fully discussed in the Lawson Case, supra.

It seems clear to us that the propriety of the cutting of the tree by the city as an exercise of its police power was peculiarly known to the city authorities. Was it a menace to safety or convenient use of the street, or in what respect did it serve the public welfare to remove the tree? The city should peculiarly know this and be prepared to sustain it.

We do not find error in the charge of the court to which exception was taken. But is the omission in the...