Alabama Power Co. v. Christian

Citation112 So. 763,216 Ala. 160
Decision Date05 May 1927
Docket Number6 Div. 712
PartiesALABAMA POWER CO. v. CHRISTIAN.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages by Alex Christian against the Alabama Power Company for cutting and removal of a shade tree. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

Sayre Somerville, and Thomas, JJ., dissenting.

Harwood & McQueen, of Tuscaloosa, and Martin, Thompson, Foster &amp Turner, of Birmingham, for appellant.

E.L Dodson, Thos. B. Ward, and Reuben H. Wright, all of Tuscaloosa, for appellee.

SAYRE J.

Appellant was constructing a light and power transmission line along a public street in the city of Tuscaloosa, and in the progress of its work felled a tree, a water oak, which had long stood near the center of the street. The tree stood on appellee's side of the middle line of the street. if that makes any difference. Appellant's transmission line was constructed along the outer margin of the sidewalk. The tree stood 21 or 22 feet from the curb. Ordinary traffic passed on either side of the tree, but the evidence for appellant went to show that safe practice in such matters, the practice of well-regulated electric light and power companies, justified the removal of the tree, because it stood so near the transmission line as, with its spreading branches, to constitute a source of danger to appellant's line and so to the public using the street. Appellant acted under authority of an ordinance of the city permitting the construction of its line, and, in view of its consultation with officials of the city having superintendence of the streets and their approval of what was done, it seems proper to treat the case as if it had a specific permit from the governing authorities of the municipality for the removal of the tree in question, though that would make no difference, if the removal was reasonably necessary to the enjoyment of appellant's franchise and right to the use of the highway for its transmission line. Barranco v. B.R.L. & P. Co., 178 Ala. 647, 59 So. 467. Appellee's complaint was that appellant, by felling the tree, deprived his adjacent premises of its grateful shade, and so had injuriously affected their value. Appellee had judgment for $1,250.

Appellee's view is that the award of damages is justified by section 235 of the Constitution, the language of which is:

"Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargement of its works, highways or improvements. ***"

"By its terms," said the Supreme Court of the United States in Pennsylvania R. Co. v. Miller, 132 U.S. 83, 10 S.Ct. 34, 33 L.Ed. 267, speaking of the identical provision of the Constitution of Pennsylvania, "it imposes a restraint only upon corporations and individuals invested with the privilege of taking private property for public use, and extends the right to compensation, previously existing, for property taken, to compensation for property injured or destroyed by the construction or enlargement of works, highways or improvements, made or constructed by such corporations or individuals. Such provision is eminently just, and is intended for the protection of the citizen, the value of whose property may be as effectually destroyed as if it were in fact taken and occupied."

The foregoing statement as to the general meaning and effect of section 235 of the Constitution is accepted without reservation; but some particular applications of the section are not so clearly defined in right and justice as they might be.

This court stands committed to the doctrine that the primary and original purpose of the dedication of a street includes the transmission of intelligence as well as public travel; that telephone and telegraph lines are simply improved methods of communication; and hence that the erection and maintenance of such lines are within the scope of the original easement for which the landowner has been compensated. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.L.A. 193, 55 Am.St.Rep. 930; Hobbs v. Long Distance, 147 Ala. 393, 41 So. 1003, 7 L.R.A. (N.S.) 87, 11 Ann.Cas. 461; B.R.L. & P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597, Ann.Cas.1915C, 863. The form of the preceding statement as to the effect of our adjudications is made in substantial conformity with the language of the editorial note to Query v. Postal Telegraph-Cable Co., 8 A.L.R. 1301, and is, we believe, a correct statement. We see no reason to doubt that, for the purpose in hand, lines for the transmission of light and power must be placed in the same category with telephone and telegraph lines.

Such being the case, and the felling of the tree having made no change in the grade of the street, and access to appellee's property having been in no wise affected thereby, some of us think that the right, so to speak, to grow or maintain trees in the public street for the private use or pleasure of the adjacent owner, after the street had once been dedicated or condemned to the public use, could not be a property right, was a mere privilege, and though such growth or maintenance was allowed, the privilege was enjoyed in subordination to the public use, and revocable at the will of the municipal authorities. This view found statement by the writer, dissenting, in McEachin v. Tuscaloosa, 164 Ala. 263, 51 So. 153, and by Judge Thomas, dissenting, in Birmingham v. Graves, 200 Ala. 463, 76 So. 395, and the argument need not be repeated. This much, however, we may say: In Southern Bell v. Francis, supra, this court, quoting from Judge Dillon, said:

"Whether the municipal corporation holds the fee of the street or not, the true doctrine is that the municipal authorities may, under the usual powers given them, do all acts appropriate or incidental to the beneficial use of the street by the public, of which, when not done in an improper and negligent manner, the adjoining free-holder cannot complain."

And again the court said:

"Appellees' ownership of the trees, whether
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