Bragg Apartments, Inc. v. City of Montgomery

• Decision Date: 29 June 1967
• Docket Number: 3 Div. 84
• Citation: 281 Ala. 253,201 So.2d 510
• Parties: BRAGG APARTMENTS, INC. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

Page 510

201 So.2d 510

281 Ala. 253

BRAGG APARTMENTS, INC. v. CITY OF MONTGOMERY.

3 Div. 84.

Supreme Court of Alabama.

June 29, 1967.

Rehearing Denied Aug. 24, 1967.

Jones, Murray & Stewart and Hartwell Davis, Montgomery, for appellant.

Whitesell, Alton & Dement and Walter J. Knabe, Montgomery, for appellee.

GOODWYN, Justice.

Appellant, Bragg Apartments, Inc., filed a bill in the circuit court of Montgomery County, in equity, alleging, as amended, that the City of Montgomery and the State Highway Director, respondents, had wrongfully closed the north end of Lockett Drive, a city street, at its intersection with the Atlanta Highway. The amended bill further alleges that respondents, 'without the consent of complainant, entered the property of the complainant upon the right-of-way for said Lockett Drive and the Atlanta Highway * * * and dug and located the south end of an under-pass for pedestrians extending under said highway and terminating on its north end on, to-wit, the public school grounds of Capitol Heights High School.'

The bill, as amended, prays for a permanant mandatory injunction directing the respondents to open the north end of Lockett Drive, to close the underpass, and to restore Lockett Drive, as nearly as practicable, to its condition prior to its alleged alterations; a permanent injunction restraining respondents from continuing the blocking, or allowing the blocking, of the north end of Lockett Drive; an award of damages resulting to complainant from the illegal closing of Lockett Drive and the construction of the underpass; and, in the alternative, if it be determined that complainant is not entitled to the injunctions prayed for, that complainant be awarded damages 'for permanent infringement on its property rights.'

The respondent City filed an answer to the amended bill denying its material allegations and further stating in part, that the City was forced to close Lockett Drive because of the improvements made by the State on the Atlanta Highway.

The State Highway Director was dismissed as a party. No point is made as to this.

There was a hearing before a jury empaneled at complainant's request to determine the amount of damages due complainant, if any. The jury found such damages to be $4,500.

The final decree denied complainant the injunctive relief sought, but accepted the jury's finding of $4,500 as permanent damages in favor of complainant 'for the permanent closing of Lockett Drive and for the construction of the pedestrian underpass.' Complainant brings this appeal from that decree.

Pursuant to Supreme Court Rule 26, 279 Ala. XXI, XXXIV, and Code 1940, Tit. 7, § 773, the record has been abridged.

The decisive question before us is whether it was error to deny the injunction directing the City to reopen the north entrance of Lockett Drive. Our conclusion is that it was. On oral argument, it was stated on behalf of appellant that no insistence is made with respect to issuing an injunction to close the underpass. However, it is insisted that damages are due as a result of constructing part of the underpass in Lockett Drive.

The facts pertinent to this appeal are as follows:

Bragg Apartments, Inc., a multi-unit apartment development located in the City of Montgomery, is bounded on the north side by the Atlanta Highway which runs in an east-west direction. Atlanta Highway is a city street which is also used by the State as a connecting part of its highway system. Lockett Drive is a one-block long dedicated public street of the City of Montgomery running in a north-south direction through a portion of the Bragg Apartments development with its north end joining the sough side of the Atlanta Highway.

On October 16, 1961, the north end of Lockett Drive, where it intersects with the Atlanta Highway, was closed due to a widening and repaving project undertaken on the latter street. As a part of this project, a pedestrian walkway was constructed under the Atlanta Highway. One end of this walkway or underpass is on the grounds of the Capitol Heights Junior High School, north of the highway, where it surfaces, and it then runs south under the highway and surfaces south of the highway on the right-of-way of Lockett Drive. Both of these projects were undertaken by the State Highway Department with the knowledge and consent of the City.

On February 1, 1962, the principal stockholder and president of Bragg Apartments, Inc., complained to the City about the closing of Lockett Drive, but was assured by one of the City Commissioners that the street would be reopened at the completion of the construction project on the Atlanta Highway. However, on April 5, 1962, the City erected a wooden barricade across the north entrance of Lockett Drive which was still there at the time of the trial. On September 18, 1962, the City's Board of Commissioners passed a resolution closing the north entrance of Lockett Drive. No other action was taken by the City or the State Highway Department to effect this closing, nor was any action taken for compensating the affected property owners for damages, if any, sustained by them due to the closing of the street and construction of the underpass.

During the construction and alteration of the Atlanta Highway, the highway was lowered by over a foot, and curbing and guttering and a sidewalk were paved across the north entrance into Lockett Drive. The result was a drop of over a foot where Lockett Drive originally entered the Atlanta Highway.

There was evidence that prior to the actual closing of the street, the principal stockholder and president of Bragg Apartments, Inc., had expressed a desire that Lockett Drive be closed. There was no evidence, however, that he communicated this desire to a representative of the City, nor that such statement was relied on by the City, nor that he thereby intended to forfeit appellant's right to compensation for the closing of the street.

The principal question facing us is whether a city may close a public street without following the statutory procedure set forth in Code 1940, Tit. 56, §§ 26--31. More basic, perhaps, is whether a City may permanently close a public street without pursuing any legal action other than a resolution of the City's governing body.

Section 235 of the Constitution of 1901 provides, in pertinent part, 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 has provided in Code 1940, Tit. 56, §§ 26--31, noted above, the way in which a municipality may close and vacate a public street. Where there is such a statute, the necessity for strict adherence to its provisions is thus stated by the Annotator in 175 A.L.R. 760, 762:

'While some limitations to its application are to be found, the rule appears to be quite general that where the procedure for the vacation, discontinuance, or alteration of a public street or highway by direct action of public authorities is prescribed by statute, it is necessary to adhere to such procedure in order that the vacation or alteration may be effective; * * *. * * *'

We approve this statement.

The City did not follow the required statutory procedure in this case.

The holding in Lybrand v. Town of Pell City, 260 Ala. 534, 71 So.2d 797, is controlling here. In that case, property owners filed a bill against the Town of Pell City to enjoin the partial obstruction of a street...