Adams v. Birmingham Realty Co.

• Decision Date: 06 February 1908
• Citation: 154 Ala. 457,45 So. 891
• Parties: ADAMS v. BIRMINGHAM REALTY CO.
• Court: Alabama Supreme Court

45 So. 891

154 Ala. 457

ADAMS v. BIRMINGHAM REALTY CO.

Supreme Court of Alabama

February 6, 1908

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by A. A. Adams against the Birmingham Realty Company. From a decree granting insufficient relief, complainant appeals. Affirmed.

The case made by the bill is that complainant and respondent each owned a lot with buildings thereon fronting on First avenue in the city of Birmingham, 25 feet each; that said lots and said building adjoin each other; that each of said buildings are two-story brick buildings, and are built flush with the building line on said street; that respondent has had certain improvements made to its said building which project out over the street 3 feet 5 inches, and consist of steps and approaches leading to said building, which are ornamented with lamp posts, stone side walls, and steps, all of the approximate height of from 4 to 6 feet. It is further alleged that complainant was the owner of his lot long before respondent made these improvements, and a long time prior to the erection and construction of said step, abutments, piers or side walls upon said sidewalk. It is then alleged the sidewalk over which these improvements are erected is a public street and highway in the city of Birmingham, and that the said improvements and encroachment upon the public highway are a nuisance, permanent, continuing, and continuous in its nature, and not only infringe upon the right of the commonwealth of Alabama in the city of Birmingham, but upon the rights of this complainant, and are of great damage to complainant beyond that which is common to the public generally. The bill sets out these damages specifically which are alleged to consist of damages to the value of the building and the cutting off of light, air, and view, etc. Respondent moved to dismiss the bill for want of equity, and filed demurrers thereto with its answer. This motion and these demurrers were overruled. The respondent also filed three pleas, the first and third of which were declared insufficient in law by the chancellor as an answer to the bill. The second plea was held good, and is as follows "Respondent says that complainant, before and during the entire time that said building was being constructed by respondent, had his business office on First avenue diagonally across, and within 200 feet, and within full view of said respondent's lot and building; that complainant's attention was frequently called to the style of building that was intended to be erected and the nature and character of the projection, and how the same would project over and upon the sidewalk; that before the said building was begun complainant examined the plan for said building several times, and that he acquiesced in the construction of the building as proposed, and encouraged respondent to construct this building in the manner in which it was constructed; that after the building had been partially erected, and the projections now complained of were almost completed, the municipal authorities of Birmingham were called upon by certain parties to prohibit the completion of said projections, about the month of October or November, 1904, and caused the removal thereof; that acting upon such request the municipal authorities of Birmingham did cause the work on said projection to be temporarily suspended. And respondent says that complainant condemned the action of the said municipal authorities in causing the suspension of the work on such projection, and repeatedly declared that such projections would not be obstructions to the street, but would enhance the beauty of the avenue and increase the value of the property adjoining, and that the same should not be interfered with; that said building was completed in the month of January, 1905, and complainant visited the same shortly after its completion, and thereafter many times each week from the time of the said completion until the filing of said bill of complaint, and with full knowledge of how said projections were made, and the effect thereof upon the avenue and upon the adjoining property commended the construction of said building as it was constructed and approved of the projection." After testimony was taken, and upon final submission, the chancellor...