Brock v. City of Anniston

• Decision Date: 13 May 1943
• Docket Number: 7 Div. 743.
• Citation: 14 So.2d 519,244 Ala. 544
• Parties: BROCK et al. v. CITY OF ANNISTON et al.
• Court: Alabama Supreme Court

14 So.2d 519

244 Ala. 544

BROCK et al. v. CITY OF ANNISTON et al.

7 Div. 743.

Supreme Court of Alabama

May 13, 1943

Rehearing Denied June 30, 1943.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge. [Copyrighted Material Omitted]

Respondent's answer to the bill of complaint is, in part, as follows:

"8. For answer to the 9th paragraph of the bill of complaint respondents deny that the City of Anniston has entered into an arrangement with the Highway Director of the State of Alabama or with R. T. Smith or R. T. Smith Construction Company to widen Quintard Avenue from 18th Street to 22nd Street. They aver the true facts to be that the United States of America acting through its agency, The Commissioner of Public Roads or Public Roads Administration, pursuant to and under and by virtue of the provisions of an Act of Congress known as Defense Highway Act of 1941, as amended July 2nd 1942, has entered into an arrangement with the State of Alabama, acting through the State Highway Director, to construct a military access road, as provided by Section 106 of said Defense Highway Act of 1941 [23 U.S.C.A. § 106], from a point in the City of Anniston at the intersection of 18th Street and Quintard Avenue North to State Highway No. 11, near Summer-all Gate, at Fort McClellan, Alabama, said road being 2.395 miles long and being known as Federal Defense Access Project No. DA-WR-20-A(1) & B(1); that said arrangement was so entered into after the Secretary of War had indicated pursuant to the terms of said Act that the construction of said road was important to national defense and had recommended the construction thereof; that a portion of said access road extends over and along the right-of-way of Quintard Avenue, in the City of Anniston, Alabama, and traverses that part of Quintard Avenue between 18th Street and 22nd Street; that the plan of said project provides for a paved way along Quintard Avenue between said streets 60 feet in width; that the State of Alabama, acting by and through W. G. Pruitt as State Highway Director, pursuant to its arrangement with the Commissioner of Public Roads, entered into a contract with R. T. Smith for the construction of said project, and at the time the bill of complaint was filed the said R. T. Smith, pursuant to his contract with the State of Alabama, was proceeding to remove the trees and obstructions between 18th Street and 22nd Street in order that he might proceed with the widening and paving of the paved portion of said street; that the City of Anniston, Alabama has no connection with said project, other than at the request and insistence of the military authorities of the United States and the State Highway Director of the State of Alabama it consented that the State Highway Department might have access to the full dedicated width of Quintard Avenue from a point 103 feet South of 18th Street to a point beyond the North line of 22nd Street in said City; that the City of Anniston was under no duty to provide a right-of-way for said highway project but merely gave its consent to the use of the City street which the United States and State of Alabama engineers determined was the only feasible route for said military access road; that the City of Anniston did not originate or instigate said project or agree to pay any part of the cost of same but its sole and only connection with the same is as herein alleged. Respondents further aver that the United States is now at war with several foreign powers; that Fort McClellan is a United States military reservation, situated a few miles north of the City of Anniston; that thousands of United States troops are being trained by the United States Army at Fort McClellan and on account of said war time conditions said Fort McClellan has been largely expanded and the volume of traffic flowing between and through the City of Anniston and Fort McClellan has greatly increased and that there is only one public way connecting Fort McClellan and Anniston, being an extension of Noble Street which runs North and South through the City of Anniston, and on account of said conditions, traffic between Fort McClellan and Anniston is badly congested and the military authorities at Fort McClellan are hampered and impeded in their military activities on account of this situation, and respondents allege that the purpose of said Federal Project along Quintard Avenue is to relieve this condition; that the project is being paid for in full by the United States, pursuant to an Act of Congress appropriating and providing money for the construction of military access roads, and the State of Alabama in the construction of said project is acting for and on behalf of and at the specific direction and request of the United States and that all funds for said project are being provided by the United States, pursuant to the Act of Congress above mentioned; that the said project is in no sense a project of the City of Anniston but is a Federal Project being executed by the Alabama State Highway Department and the said R. T. Smith in and about the construction of said project is acting solely as the servant, agent or employee of the Alabama State Highway Department."

Horace C. Wilkinson, of Birmingham, and C. H. Young, of Anniston, for appellants.

Merrill, Woolf & Merrill, of Anniston, and Wm. N. McQueen, Acting Atty. Gen., for appellees.

GARDNER, Chief Justice.

Complainants are the owners of residential property abutting on Quintard Avenue in the City of Anniston, and filed this bill seeking injunctive relief against the City of Anniston, the Highway Director of the State of Alabama, and the R. T. Smith Construction Company, against the widening of the paved portion of said avenue between Eighteenth and Twenty-second Streets. The equity of the bill rests upon the theory that the abutting property of these complainants will be damaged by the contemplated improvements, in the destruction of many valuable shade trees, flowers, grass and shrubbery, between the curb and the property line on both sides of Quintard Avenue between said streets, as well as a change in the curbing, gutter, and sidewalks, as a part of said improvement. The equity of the bill was not challenged, and is well sustained by our authorities. City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433; McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So 153; City Council of Montgomery v. Townsend, 80 Ala. 489, 2 So. 155, 60 Am.Rep. 112; Southern Bell Tel. & Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930; Finnell v. Pitts, 222 Ala. 290, 132 So. 2; McGowin v. City of Mobile, 241 Ala. 576, 4 So.2d 161, and authorities therein cited.

The contemplated improvement touches none of the property here involved. Quintard Avenue was originally opened up for a width of eighty feet more than twenty years ago and dedicated to the public use with only a paved way of thirty-two feet. The proposed project does not widen the street, but only the paved way, so that the paved portion of the street will extend through these blocks a width of sixty feet. This necessitates not only the removal of some of the trees growing in the parkway between the curb and the sidewalk, but also the disturbance of some of the curb, and for a short distance, the removal of the sidewalk. We think it clear enough, and requires no discussion to disclose, this contemplated improvement is not a taking of any of the property of the complainants within the meaning of Section 235 of the Constitution of 1901, but that the damages suffered are consequential in character, though equally protected by this constitutional provision. William N. Hunter and T. S. Hunter v. City of Mobile, Ala. Sup., 13 So.2d 656; City of Birmingham v. Graves, 200 Ala. 463, 76 So. 395; Southern Bell Tel. & Tel. Co. v. Francis, supra.

Upon presentation to the chancellor, and without notice, temporary injunction was issued as prayed. But upon hearing of the motion to dissolve and a consideration of the answer of the defendants and oral proof, the chancellor granted the motion and dissolved the injunction. From this decree, the complainants prosecute this appeal.

The answer denied emphatically that the City of Anniston is engaged in making this improvement, and sets out in more or less detail the facts which brought it about. Concerning these facts, there is little, if any, dispute. On the outskirts of the City of Anniston is located what is known as Fort McClellan, which is owned in fee by the Federal Government (Pound v. Gaulding, 237 Ala. 387, 187 So. 468), and where many thousand soldiers are being trained, and where, on account of wartime conditions, the volume of traffic flowing between and through the City of Anniston and Fort McClellan has greatly increased, with only one public highway connecting the fort with the city. Military authorities, therefore, are hampered and impeded in their military activities on account of this situation. Quintard Avenue beyond Twenty-second Street has not heretofore been opened for traffic, but was what is known as a dead-end street. This improvement contemplates the opening and extension of Quintard Avenue beyond Twenty-second Street on to Fort McClellan. The purpose of this project is to relieve the congested condition as above indicated.

In view of the existing emergency, Congress passed what is known as the Defense Highway Act of 1941, Title 23 U.S. C.A. § 101-117. In Section 106 is to be found detailed provisions for the construction, maintenance, and improvement of "access roads," and for replacing existing highways and highway connections, to military and naval reservations defense industries and defense sites, and to sources of raw material, when such roads are certified to the Federal Works...