Chichester v. Kroman

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 496.
• Citation: 128 So. 166,221 Ala. 203
• Parties: CHICHESTER ET AL. v. KROMAN.
• Court: Alabama Supreme Court

128 So. 166

221 Ala. 203

CHICHESTER ET AL. v. KROMAN.

6 Div. 496.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 15, 1930.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Jennie S. Kroman against C. H. Chichester and John D. Chichester. From a decree for complainant, respondents appeal.

Reversed and rendered.

Woolverton & Haley, of Birmingham, for appellants.

Fort Beddow & Ray and G. Ernest Jones, all of Birmingham, for appellee.

FOSTER J.

The principles of law which seem to control this case have been expressed in several of our decisions. We wish to group them for convenience. Unless specially authorized by the Legislature, a city cannot permit the obstruction of a street or alley which has been completely dedicated to the public. State v. L. & N. R. R. Co., 158 Ala. 208, 48 So 391; City of Troy v. Watkins, 201 Ala. 274, 78 So. 50.

But the Legislature may vacate a street, and may delegate the power to do so to the municipal authorities. State v. L. & N. R. R. Co., supra; Mobile & M. Rwy. Co. v. A. M. Rwy. Co., 116 Ala. 66, 23 So. 57, 60; 2 Dillon, Municipal Corporations (3d Ed.) 656, 657. Except as restricted by the Constitution, the state's power is plenary in respect to the vacation of streets and highways within its borders. Duy v. Ala. West. Rwy. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119; 4 McQuillen on Municipal Corporations (2d Ed.) § 1519.

If the Legislature has authorized the vacation of a street not in violation of the Constitution, an obstruction in accordance with such authority is not a nuisance; for whatever is lawful cannot be a nuisance. State v. L. & N. R. R. Co., supra; Southern Rwy. Co. v. Ables, 153 Ala. 523, 45 So. 234, 238; Northern Transportation Co. v. Chicago, 99 U.S. 635, 640, 641, 25 L.Ed. 336; Alabama G. S. R. R. Co. v. Barclay, 178 Ala. 124, 59 So. 169. But, though the Legislature may attempt to permit such obstruction, yet it may infringe upon certain property rights which cannot be taken by the state under section 23 of the Constitution without just compensation. But it is not every lot owner on said street whose rights are thus protected. But only those whose lots about the portion of the street vacated, not including one whose lot only corners it (Albes v. So. Rwy. Co., 164 Ala. 356, 51 So. 327; Id., 153 Ala. 523, 45 So. 234; Hall v. A., B. & A. R. R. Co., 158 Ala. 271, 48 So. 365), unless his property has by said vacation been cut off without some convenient and reasonable way of travel from the outside (Jackson v. B'ham Foundry & Mach. Co., 154 Ala. 464, 45 So. 660, 662; Hall v. A., B. & A. R. R. Co., supra).

The doctrine of such cases puts a limitation upon these further principles to the effect that every purchaser of a lot shown on a map "has the right, as against the dedicator and his privies (i. e., the purchasers of other lots) to have the designated scheme of public ways and places maintained in its integrity, as it existed at the time of his purchase and that all persons whatsoever may use them as occasion may require. Highland Realty Co. v. Avondale Land Co., 174 Ala. 326, 56 So. 716; Smith v. Birmingham Realty Co., 208 Ala. 114, 94 So. 117; Stack v. Tennessee Land Co., 209 Ala. 449, 96 So. 355" (Thetford v. Cloverdale, 217 Ala. 241, 115 So. 165, 167), and to the effect that a private person, "if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have the same abated, if the remedy at law is inadequate" (Alabama, G. S. R. R. Co. v. Barclay, 178 Ala. 124, 59 So. 169, 170; Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384, 41 So. 907, 8 L. R. A. [N. S.] 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285), and that an action at law may be maintained by him for damages in such a case (Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Meighan v. B. T. Co., 165 Ala. 591, 51 So. 775; Duy v. A. W. Rwy. Co., supra). It is not necessary that his property abut the closed portion of the street in order to abate an obstruction which is not authorized by law and is a nuisance or recover damages for it, but in order to maintain such suit, the lot must be so situated as that its owner suffers "special damage" different from that suffered by the public generally. Authorities supra.

Such private rights and suits by the property owner are subordinate to the right of the state to vacate any public street or alley, with the limitation that in doing so it must make just compensation to the owners of lots which abut that portion of the street vacated, or whose lots are cut off from access thereby over some other reasonable and convenient way under the requirements of section 23 of the Constitution. So that, if the state has vacated a public street or alley, or has authorized a city to do so, the only persons who may complain are the owners of lots abutting on that portion which is vacated, or which are cut off from convenient and reasonable access by some other public street or alley.

The lot of the complainant in this case does not abut nor even corner at that portion of the alley proposed to be vacated.

Appellants contend that there has been a full and complete compliance with the provisions of section 10361, Code, amended by Acts 1927, p. 195. This of course is a legislative act which has general application, and the street or alley is in an incorporated city, and it delegates to that city the right to grant or refuse its approval of the proposed vacation, and thereby to express the will of the state. But if the requirements of that enactment are complied with, including the assent of the city to be manifested as there indicated it becomes, ipso facto, a...