Alabama Great Southern R. Co. v. Barclay

• Decision Date: 09 May 1912
• Citation: 178 Ala. 124,59 So. 169
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BARCLAY.
• Court: Alabama Supreme Court

59 So. 169

178 Ala. 124

ALABAMA GREAT SOUTHERN R. CO. v. BARCLAY.

Supreme Court of Alabama

May 9, 1912

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

Bill by John W. Barclay against the Alabama Great Southern Railway to abate a nuisance. From a decree overruling demurrer to the bill, respondent appeals. Affirmed.

The bill alleges that plaintiff is the owner of certain real estate in Birmingham, which is described, and it is alleged that it fronts on the south side of Avenue D, and runs back along the east side of Twenty-Sixth street 140 feet; that said Twenty-Sixth street is a public street in the city of Birmingham, and is so dedicated to the public, as is shown on the map and plat of said city, and runs through many blocks of said city, to wit, 20 blocks, running from South Highlands to North Highlands, and running by and along the block by complainant's said property as above described, and that the owners of property and the public generally have a right of passage along such street, and along said street to have access to their property. It is further alleged that the street runs directly from complainant's property to the railroad terminal station located in the city of Birmingham to which station nearly all the trains entering said city come and stop. Defendant, notwithstanding these facts and the right of abutting property owners and the public to have said street kept open and unobstructed for the purpose of travel the Alabama Great Southern Railway, has obstructed a large portion of said Twenty-Sixth street lying just north of its intersection with Powell avenue in said city, and just north of the track of the Southern Railway, which runs along Powell avenue, or which would be Powell avenue, if extended, and still continues to obstruct said portion of Twenty-Sixth street, and to exclude the public and abutting property owners, and using said portion of said street as and for a public highway. The obstruction is alleged to be the erection of a fence along said highway and across it, and by the erection of shops and buildings thereon. The obstruction to plaintiff's property is alleged to be such that parties desiring to go northward into other portions of the city of Birmingham, and especially to that portion where is located the said terminal railroad station, may not go by direct course along said Twenty-Sixth street, but must go by circuitous route, either by going to some other street westward, such as Twenty-Fourth street, which is a neighborhood of bad repute, or by going a long distance eastwards to Thirty-Second street. It is then alleged that on this account plaintiff's property is rendered less valuable, etc. It is then alleged that this obstruction is being maintained by the respondent with full knowledge that this is a public street or highway, and that it will be continued to the exclusion of all persons who have a right to go along there, and that the respondent will not remove or abate said nuisance, unless compelled to do so by this honorable court. The demurrers were that the bill was without equity, that the descriptions were uncertain and indefinite that no special damages are alleged as shown, and that the bill shows that the complainant is not entitled to relief, because he is not shown to be an abutting owner, or that his property abuts on that part of the street which it is alleged was obstructed.

A. G. & E. D. Smith, of Birmingham, for appellant.

James A. Mitchell, of Birmingham, for appellee.

ANDERSON J.

The strictness of the rule as to the right to maintain a private action growing out of an obstruction to highways and navigable streams has been considerably modified since the days of Lord Coke. Joyce on Nuisances, § 424. The doctrine now is, in this and many other states, that a private individual, who suffers no damages different from those sustained by the public at large, has no standing in court; "but, if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have same abated, if the remedy at law is inadequate." Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384, 41 South.

907, 8 L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285, and authorities cited; Sloss-Sheffield Co. v. McLaughlin, 55 So. 522; Duy v. Alabama Western Ry. Co., 57 So. 725.

As to when special damages are shown by the obstruction of a highway to a property owner on said highway, different in kind from those sustained by the general public, is a question not free from difficulty; but this court is committed to the rule that, if the obstruction forces the owner of the land out of his direct, public street or road into a circuitous route in his commerce and intercourse with the outside world, this is a special injury to him, not suffered by the general inhabitants of the state, county, or city. Johnson's Case, supra. It may be true that the present bill does not set up facts...