Ables v. Southern Ry. Co.

• Decision Date: 30 June 1909
• Citation: 51 So. 327,164 Ala. 356
• Parties: ABLES v. SOUTHERN RY. CO. ET AL.
• Court: Alabama Supreme Court

51 So. 327

164 Ala. 356

ABLES v. SOUTHERN RY. CO. ET AL.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Action by Charles Edward Ables against the Southern Railway Company and others. From a decree for defendants, plaintiff appeals. Affirmed.

See also, 153 Ala. 523, 45 So. 234.

Brown &amp Kyle, for appellant.

Callahan & Harris and Paul Speake, for appellees.

SIMPSON J.

The bill in this case was filed by the appellant against the mayor and council of the city of Decatur and the Southern Railway Company, and prays "that respondents be enjoined from vacating Vine street where it crosses the right of way of the Southern Railway and from vacating La Fayette street where it crosses said defendant's right of way as to persons in vehicles and on horseback, until compensation is first made to orator for damage that will accrue to his lot and business," and that said mayor and council be restrained and enjoined from donating to said railway company that portion of La Fayette street covered by said railway company's right of way, and that, if said vacation be made, respondent be required to pay damages, etc. This case was before this court at a previous term of this court. So. Ry. Co. et al. v. Ables, 153 Ala. 523, 45 So 234.

From the plat which is made "Exhibit K" to the bill, it will be seen that the hotel property of the complainant fronts on an open space (part of lot 257), which is bounded on the east by the right of way of the Southern Railway. That part of lot 258 owned by him is bounded on the east by said right of way. La Fayette street bounds said property on the north, with his lot 79 on the opposite side of said street, and Vine street bounds complainant's property on the south. The parts of the streets which are vacated by the city council are described as "that part of Vine street between Railroad and Sycamore streets * * * now covered by the right of way of the Southern Railway Company," also "La Fayette street over the Southern Railway Company's right of way." It will be seen that no part of the streets immediately opposite the complainant's property is vacated or closed, but the corners of complainant's property touch the corners of the parts of the streets vacated. It will be noticed, also, that, according to the agreement and the action of the city council, that part which is vacated was already in the possession of the Southern Railway Company as its "right of way."

It is alleged that said railway company has built a shed across or nearly across Vine street on its right of way, has ploughed up that portion of La Fayette street on its right of way, and built a shed across said street on its right of way, also a cement walk, several inches above the ground, thus rendering it impracticable for vehicles and horses to cross at said crossing. The bill alleges that complainant's property "abuts on and extends along" said street; that "he owns to the center of the street"; that "said corner abuts on and touches defendant's, Southern Railway Company's, right of way, where it is intersected by La Fayette street, said corner being on the south side of said intersection"; also, that "the southeast corner of lot 258, as is above described, abuts on defendant's, Southern Railway Company's, right of way where Vine street intersects said right of way."

When this case was before this court at a previous term, the opinion of the court opens with this statement: "Conceding that the abutting owner of the street has such a private interest therein as would entitle him to compensation under section 235 of the Constitution of 1901 before a vacation thereof by the municipality, the complainant does not bring himself within the protection of said section, as the bill does not aver that he is an abutting owner on those particular parts of the street that were vacated." While the word "abut" is not used in the bill, as it was originally, yet the description therein shows the exact location as it is shown in this bill, to wit, that the property of complainant corners where the vacated portion of the street corners on the railway right of way, and to which point the street is vacated, but no part of the street in front of complainant's lot is vacated.

A number of cases are cited in appellant's brief referring to damages claimed, where a railroad has thrown an embankment across a street, and for obstructions otherwise placed on a street, obstructing view, etc. These cases have no application to this case. The point here involved is as to the right of the legislative department of the state, either directly or through the municipality, to vacate a street, and as to the right to demand compensation on account of said vacation. It is a long-recognized principle in our jurisprudence that the legislative department of the state has absolute power, except in so far as it is restrained by the provisions of our Constitution. We fail to see how section 235 of the Constitution can have any application, as that section provides for compensation only "for the property taken, injured or destroyed by the obstruction or enlargement of its works, highways or improvements," and the act complained of here is not the construction or enlargement of a street, but the opposite, to wit, the destruction, or vacating of a portion of the street. City of E. St. L. v. O'Flynn, 119 Ill. 200, 10 N.E. 395, 59 Am. Rep. 795. Section 23 of the Constitution provides that "private property shall not be taken for, or applied to public use, unless just compensation be first made therefor, nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner" (saving, however, the right of condemnation for a right of way). The power that creates may destroy, and any right which is the mere creature of legislative power may be taken away, unless in the creation of it there is some element of contract, or in some other way it has become property which cannot be taken without compensation. Martin v. Hewitt, 44 Ala. 418, 435; Curry v. Landers, 35 Ala. 280, and cases cited.

The Supreme Court of the United States, as well as other courts has said that "that which the law authorizes cannot be a nuisance, such as to give a common-law right of action,". and holds that though the Legislature may in authorizing and directing the doing of things injurious to individuals provide for compensation; yet, if no such provision is made, there is no right of compensation. Transportation Company v. Chicago, 99 U.S. 635, 640-41, 25 L.Ed. 336; So. Ry. v. Ables, supra, 153...