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

• Decision Date: 30 May 1907
• Citation: 151 Ala. 187,44 So. 152
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MORAN ET AL.
• Court: Alabama Supreme Court

44 So. 152

151 Ala. 187

BIRMINGHAM RY., LIGHT & POWER CO. v. MORAN ET AL.

Supreme Court of Alabama

May 30, 1907

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

Bill by Mabel Moran and others against the Birmingham Railway, Light & Power Company. From a decree for the complainants defendant appeals. Affirmed.

Tillman Grub, Bradley & Morrow, for appellant.

Caldwell & Carmichael, for appellees.

SIMPSON J.

The bill in this case was filed by the appellees (complainants) against appellant, alleging the ownership of certain lots in Birmingham by complainants, back of which there is an alley which alley it is claimed has been obstructed by the building and operation of a railroad thereon, and by the building of a fence and gate across it, thus inclosing said alley. It also makes other allegations about obstructing said alley by allowing cars to stand thereon, and also by leaving accumulations of coal thereon, so as to completely obstruct it. From the descriptions of the obstructions it appears that, while the alley is left clear and unobstructed immediately in the rear of complainants' lots, with an outlet eastwardly on Fourteenth street, yet from the northwest corner of complainants' lots westwardly to Thirteenth street said alley is obstructed and practically closed. The bill also alleges that no right or franchise has been granted by the city of Birmingham to respondent to erect and maintain a railroad on said alley, or to place the other named obstructions thereon, and that said city has no power to grant any such rights.

It is settled law that a railroad, constructed and operated on the streets and alleys of a city without authority of law, constitutes a public nuisance, as does also the erection of a fence and gate across any such street or alley. It is also settled law that a public nuisance may be abated or enjoined by an individual property owner, who suffers injury thereby of a special nature, separate and distinct from that which the public generally sustains. 27 Am. & Eng. Ency. Law (2d Ed.) 176; Elliott on Roads & Streets, p. 500; L. & N. R. R. v. Mobile, J. & K. C. R. R., 124 Ala. 162, 166, 26 So. 895; Weiss et al. v. Taylor et al., 144 Ala. 440, 466, 39 So. 519. The appellant does not controvert the above propositions, but insists that the bill, in this case does not show that the complainants suffer such special and irreparable damage, distinct from that which the public generally suffers, as to entitle them to injunctive relief.

In the case of Dennis v. Mobile & Montgomery Railway Co. et al., 137 Ala. 649, 35 So. 30, 97 Am. St. Rep. 69, the complainant's lot was 600 feet from the Union Depot, and more than 400 feet from the warehouse which was sought to be abated as a nuisance, and "over the space between complainant's lot and the Union Depot and the warehouse access to and...