Markstein v. City of Birmingham

• Decision Date: 28 January 1971
• Docket Number: 6 Div. 770
• Citation: 286 Ala. 551,243 So.2d 661
• Parties: Elaine A. MARKSTEIN v. CITY OF BIRMINGHAM, a Municipal Corporation, et al.
• Court: Alabama Supreme Court

Page 661

243 So.2d 661

286 Ala. 551

Elaine A. MARKSTEIN v. CITY OF BIRMINGHAM, a Municipal Corporation, et al.

6 Div. 770.

Supreme Court of Alabama.

Jan. 28, 1971.

Markstein & Morris, Birmingham, for appellant.

Sam R. Shannon, Jr., and J. H. Crow, III, Birmingham, for City of birmingham.

John S. Foster, Birmingham, for Jefferson County, Cooper Green, Tom Pinson and E. H. Gilmore, Members of Jefferson County Commission.

MERRILL, Justice.

This appeal was the result of plaintiff's motion for a nonsuit, due to the sustaining of demurrers to the complaint as last amended.

Plaintiff-appellant alleged in effect that she owned valuable residential property in the City of Birmingham, which abutted Henrietta Road and Crest Road, that the property was served by access to those roads, that the construction of the 'Red Mountain Expressway' had resulted in these roads being 'blocked and severed and the access in an easterly direction formerly enjoyed by Plaintiff's property along said streets has been destroyed, and a cul-de-sac has been formed where said streets have been cut or blocked by said Expressway.' It was also alleged that 'Plaintiff's said land, as above described, is located in close proximity although not immediately contiguous to said Expressway, but the value of Plaintiff's land was substantially damaged by reason of the construction of said Expressway,' and that 'the remaining access in a westerly direction still available to the Plaintiff was and is not reasonably adequate, as compared with the access available to the Plaintiff before the construction of said Expressway.' As used in this and similar cases, a cul-de-sac is a 'dead end' not originally in a road, street, alley or way, but a barricade which obstructed the road, street, etc., because of the vacation of part of it, or an obstruction such as a fill, a deep cut, a fence or building across the street, road, etc., resulting in a 'dead end.'

The City of Birmingham and Jefferson County were made parties respondent and plaintiff claimed $20,000.00 as damages based upon section 235 of the Alabama Constitution of 1901.

This case presents and requires a choice between the 'cul-de-sac' rule, as advocated by appellant, or what we denominate as the 'reasonable access test' which was applied by the trial court and supported here by appellees.

Appellant correctly states the cul-de-sac rule to be that 'Municipal and other corporations and individuals invested with the privilege of taking property for public use are liable for consequential damages resulting from a cul-de-sac created by the construction or enlargement of its or their works, highways, or improvements.' Cited in support of this proposition are 'In Re Vacation of Part of Melon Street, 182 Pa. 397, 38 Atl. 482 (1897)' and 'Bacich v. Board of Control of California, 23 Cal.2d 343, 144 P.2d 818 (1943).' We do not think McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153, is apt authority because it is not a cul-de-sac case.

In our cases of Walls v. C. D. Smith & Co., 167 Ala. 138, 52 So. 320, and Chichester v. Kroman, 221 Ala. 203, 128 So. 166, we held that the owner of land abutting a street, part of which is vacated or obstructed, has no right to damages unless his land abuts the vacated or obstructed part, or unless reasonable access is denied as a result of the vacation or obstruction.

In Southern Railway Co. v. Ables, 153 Ala. 523, 45 So. 234, and Walls v. C. D. Smith & Co., supra, we held that the bill in Ables, and the complaint in Walls, were demurrable because there was no averment that the plaintiff's land abutted that part of the street which was obstructed or vacated.

In Hall v. Atlanta, B. & A.R.R. Co., 158 Ala. 271, 48 So. 365, we said:

'This matter has been so recently considered by this court it seems useless to cite the numerous authorities elsewhere on the subject. This court has held distinctly that the Legislature has the power to vacate streets, either by direct act, or by act authorizing the municipal authorities to do so, and that a property owner does not bring himself within the protection of section 235 of the Constitution of 1901, unless he shows that he is an 'abutting owner.'--Southern Ry. Co. v. Ables (153 Ala. 523), 45 South. 234, 235; Jackson v. Birmingham Foundry, etc., Co. (154 Ala. 464), 45 South. 660. Beyond the abutting owner, the only limit to the power of the Legislature to abolish a street is that the property owners along the street shall not be deprived of a 'convenient and reasonable outlet to neighboring thoroughfares.'--Jackson v. Birmingham, etc., Co., supra; Elliott on Roads & Streets (2nd Ed.) § 878. The bill in this case does not claim that complainants have been deprived of a reasonable outlet, but only that one end of the alley is obstructed. This act, then, is not violative of section 235 of the Constitution of 1901.'

We concede, as appellant points out in brief, that the first reference, supra, to section 235 of our Constitution should have read 'section 23' because the cited cases were under section 23, and this court said it 'inadvertently referred to section 235' in Duy v. Alabama Western Railway Co., 175 Ala. 162, 174, 57 So. 724, 727. There is no question but that the Hall case was considered under section 235 (it was cited in briefs of both parties), or that the basis of the decision in the Hall case was section 235 of the Constitution.

We note that section 235, which begins 'Municipal and other corporations and individuals invested with the privilege of taking property for public use, * * *' does not apply to eminent domain proceedings initiated by the State. State v. Barnhill, 280 Ala. 574, 196 So.2d 691; Finnell v. Pitts, 222 Ala. 290, 132 So. 2...