Birmingham Ry., Light & Power Co. v. Smyer

• Decision Date: 06 February 1913
• Citation: 61 So. 354,181 Ala. 121
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SMYER. SMYER v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

61 So. 354

181 Ala. 121

BIRMINGHAM RY., LIGHT & POWER CO. v. SMYER.

SMYER v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

February 6, 1913

Rehearing Denied March 18, 1913

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

Bill by E.J. Smyer against the Birmingham Railway, Light & Power Company. From the judgment, defendant appeals, and plaintiff brings cross-appeal. Affirmed on cross-appeal, and reversed rendered, and remanded on main appeal.

Tillman Bradley & Morrow and Frank M. Dominick, all of Birmingham, for appellant.

E.H. Dryer and E.J. Smyer, both of Birmingham, for appellee.

MAYFIELD J.

The following statement of the record, which is practically appellee's statement of the case made by his bill, presents the following questions for decision on this appeal: (1) Can a person whose property abuts on a public street in a city, which street is 34 feet wide, is much used for general travel, has been paved at the expense of abutting owners, and accommodates an electric street car line which is operated at grade, have injunctive relief against the street car company to prevent the construction by it of a double track on that street, notwithstanding the construction of such line is authorized by the city authorities? If not entitled to an absolute and permanent injunction, is he entitled to have the construction restrained until compensation is paid him for the injury to his property and for his aliquot part of the cost of paving the street in front of his property? These questions depend upon the answers to the following inquiries: First. Will the construction of the second car line or double track amount to a nuisance? Second. If it will not constitute a nuisance, will it be an additional servitude imposed upon the street, in excess of the use intended or designated in the act of dedication? Third. Are the plaintiff's damages, such as are shown in his bill, within the protection of section 235 of the state Constitution, which reads as follows: "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, which compensation shall be paid before such taking, injury or destruction. The Legislature is hereby prohibited from denying the right of appeal from any preliminary assessment of damages against any such corporation or individuals made by viewers or otherwise, but such appeal shall not deprive those who have obtained the judgment of condemnation from a right of entry, provided the amount of damages assessed shall have been paid into court in money, and a bond shall have been given in not less than double the amount of damages assessed, with good and sufficient sureties, to pay such damages as the property owner may sustain; and the amount of damages in all cases of appeals shall on demand of either party, be determined by a jury according to law"? Fourth. If his damages are not within the protection of section 235 of the Constitution, are they within the protection of section 227 of the Constitution, which reads as follows: "Any person, firm, association or corporation, who may construct or operate any public utility along or across the public streets of any city, town or village, under any privilege or franchise permitting such construction or operation, shall be liable to abutting proprietors for the actual damage done to the abutting property on account of such construction or operation"?

The prime purpose of streets is use for travel by the public. The right of the public to the use of the street is paramount to that of an abutting owner, or to that of any individual or corporation, no matter what may be the use to which he desires to devote a part of the street. Any unauthorized permanent obstruction of the streets which prevents the exercise of this use by the public, is a nuisance, which a court of equity, in a proper suit, will abate. There are, however, some temporary obstructions and partial occupations of the streets, by individuals or corporations, which are allowed on the ground of necessity, such as materials for building or for repairing placed thereon by abutters in such manner as to cause the least inconvenience to the public. Moreover, individuals are permitted to use a part of the street, a reasonable length of time, for the receiving and delivering of goods at their residences or business houses abutting on the streets. These private uses, however, must not be inconsistent with the reasonably free passage of travel; but necessity justifies slight inconveniences and occasional interruptions in the free use of the whole of a street by the public.

The rule is well stated by Earl, J., in the case of Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264, and approved by Mr. Freeman in a note to that case as reported in 1 Am.St.Rep. 831. It is there said: "An abutting owner, engaged in building, may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers; and the use of a street for public travel may be temporarily interfered with in a variety of other ways, without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact to be determined upon the evidence relating thereto." Under this doctrine it was at first thought that the placing of a fixed track of rails in a street, on which street cars were to be operated, was an unwarranted obstruction of the street, though the cars were drawn by horses or mules; but all the courts held that it was not an unwarranted obstruction, but was a means of facilitating public travel along the street, and was therefore not a nuisance but an improved mode of use of the street for the purpose intended. The New York court, however, held that, while it was not a permanent a obstruction, yet it was an additional servitude imposed upon the highway, as to which the abutting owner was entitled to compensation; but all the other courts, save that of Nebraska, held that it was not even an additional servitude, and that the abutting owner was not entitled to compensation by reason of the construction of a street car track at grade in the street.

In the course of progress and the development of street transportation, the horse car was superseded by the dummy or steam line, and this by the electric car system; and it was in turn contended that each of these agencies of travel involved an unauthorized, unwarranted use of the streets, and therefore constituted an obstruction and a nuisance, or, if not a nuisance, an additional servitude imposed upon the highway, not included in or authorized by the original dedication or condemnation. This question was first considered by this court in the case of Perry v. N.O., M. & C.R.R. Co., 55 Ala. 413, 28 Am.Rep. 740, wherein the court, through Stone, J., spoke as follows: "The introduction of railroads as highways of travel and transportation has seemingly disturbed some of the old landmarks, and requires of the courts, in accommodation to the spirit of progress, that we apply principles, long well understood, to new conditions and exigencies. 'All property,' says an eminent authority, 'is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.' Commonwealth v. Alger, 7 Cush. [ Mass.] 84, 85, per Shaw, C.J. 'By this general police power of the state, persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state, of the perfect right in the Legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.' Thorpe v. Rutland & Burlington R.R., 27 Vt. 140, 149 ."

In Perry's Case it was held that an ordinary commercial railroad laid in a street was an additional servitude, and that a municipal corporation, without express authority from the Legislature, could not authorize it.

The question was again before this court in the case of Western Railway of Alabama v. Alabama Grand Trunk Railroad Co., 96 Ala. 272, 11 So. 483, 17 L.R.A. 474, in which case the authorities were reviewed; and it was held that: "Where a railroad company, under express legislative and municipal authority, constructs its road on a street in a city, the fee to which street is in the proprietors of the property abutting thereon, such railway company is not a trespasser nor its railway an unlawful obstruction or nuisance upon such street, and that an injunction will not lie in favor of such proprietor to restrain the construction of the road. Perry v. N.O etc., Railroad Co., 55...