Birch v. Ward

• Decision Date: 05 April 1917
• Docket Number: 6 Div. 438
• Citation: 75 So. 566,200 Ala. 118
• Parties: BIRCH v. WARD et al.
• Court: Alabama Supreme Court

75 So. 566

200 Ala. 118

BIRCH v. WARD et al.

6 Div. 438

Supreme Court of Alabama

April 5, 1917

Upon Rehearing, May 24, 1917

Upon Rehearing.

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Allie C. Birch against Geo. B. Ward and others for trespass to realty. Judgment for defendants, and plaintiff appeals. Affirmed.

The case made by the pleadings and the facts sufficiently appears in the opinion. The following charges were refused plaintiff:

(A) If you believe from the evidence that defendants caused plaintiff's building to be torn down, and she was damaged as a proximate consequence of such tearing down, you will find for plaintiff.

(B) Affirmative charge to find for plaintiff as against both defendants.

(C) General affirmative charge for plaintiff.

(18) The court further charges the jury that if they believe from the evidence that the defects, if they believe that defects existed, could be cured by repairing the building that in that event defendants were not authorized to destroy such building, even if the building at the time of its destruction was in use.

(19) The court further charges the jury that if they believe from the evidence that the building which was destroyed by defendants could have been placed in a safe condition by repairing the same, then defendants are not authorized, under the law, to demolish said building, even if such building was in an unsafe condition at the time of its destruction.

(20) The court further charges the jury that if a nuisance existed on the premises of defendant, due either to an unsanitary condition of the premises, or to an unsafe condition of the building, that the city of Birmingham could have abated such nuisance or nuisances by removing the cause of the unsanitary condition, or repairing the building, or strengthening its foundation, and assessed the cost of such abatement against the property; and if they believe from the evidence that any nuisance which may have existed at the time of the destruction of the building could have been abated by the removal of the cause of obnoxious odors or smells, or by the repair of the building, or any portion thereof, then they must find for plaintiff as against both of the defendants.

Mr Ward was president of the board of city commissioners of the city of Birmingham, and as such officer had charge of the matter in hand, and employed Mr. Bostick, the other defendant, to remove the building.

Banks Deedmeyer & Birch and C.C. Nesmith, all of Birmingham, for appellant.

M.M Ullman and W.A. Jenkins, both of Birmingham, for appellees.

ANDERSON C.J.

This was an action of trespass against the defendants for tearing down a house belonging to the plaintiff, the defense being that said house constituted a nuisance, and that the defendants acted under the authority of and in behalf of the city of Birmingham, and the jury found that it was a nuisance. Indeed, the argument of counsel of the chief legal questions is upon the hypothesis that the house was a nuisance at the time of its destruction.

As to whether or not the municipality, the city of Birmingham, had the authority, under the common law, to abate nuisances, and whether or not it could do so by removing or destroying same, or whether or not the right went to public as distinguished from private nuisances, we are not concerned, as the statute gives this right as to all nuisances. Sections 1264, 1278, Code 1907. In fact, the appellant's counsel do not seriously question the authority of the city, but contend that this authority could not be delegated or authorized except by an ordinance. The act being ministerial, we think that it could be delegated to an agent or official of the city by general ordinance or authorization, and need not have been by a special ordinance to do the specific thing. While the act providing for the commission form of government for the city of Birmingham attempts to define the duties of the commissioners, respectively, it contains a general clause which reads as follows:

"This provision shall not be construed however so as to prevent the said board from delegating or assigning to one or more of its boards or to such boards, commissions, officers or employés as may be created or selected by it, the performance of such executive and judicial powers and duties as may be necessary or convenient, provided the same is done by resolution, by-law or ordinance duly enacted according to the terms of this act."

In pursuance to this authority it appears that Ordinance 27-C was adopted. Section 1 provides for a general division of the powers; section 3 prescribes the duties of the head of each department, and gives the commissioners, respectively, the supervision and control over all subordinates belonging to their departments; and section 4 defines the duties and the authority of the department over...