City of Bessemer v. Abbott

• Decision Date: 19 March 1925
• Docket Number: 6 Div. 361
• Citation: 103 So. 446,212 Ala. 472
• Parties: CITY OF BESSEMER v. ABBOTT.
• Court: Alabama Supreme Court

103 So. 446

212 Ala. 472

CITY OF BESSEMER v. ABBOTT.

6 Div. 361

Supreme Court of Alabama

March 19, 1925

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action for damages by John H. Abbott against the City of Bessemer for the maintenance of a nuisance. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 7326, Code of 1923. Reversed and remanded.

Bumgardner & Wilson, of Bessemer, for appellant.

Pinkney Scott, of Bessemer, for appellee.

SOMERVILLE J.

The gravamen of the complaint is that the defendant "did erect, maintain, and construct an incinerator for cremation of dead animals, garbage, filth, and all kinds of débris from the city of Bessemer, so contiguous to, with such proximity and so near to plaintiff's property; and did haul to said place and deposit thereat said débris, said dead animals, and such filth; and did haul same in open wagons, and create such odors, vapors, stenches, and offense until the same was a nuisance to this plaintiff and his family."

As we construe the complaint, it charges that the defendant municipality has maintained an actionable nuisance in that it has operated near plaintiff's premises an incinerator for the disposal of dead animals, garbage, and other waste materials of a noxious character, the particular forms of offense being (1) that those noxious materials have been hauled to the incinerator in open wagons so as to diffuse offensive odors; and (2) that in the operation of the plant, i.e., in the burning of this waste material, plaintiff's premises--dwelling and storehouse--were invaded by filthy and offensive smoke, vapors, and odors generated thereby.

Section 2039, Code 1923, gives to municipal corporations the power:

"To establish and maintain crematories for the destruction of garbage and like substances, either within or without the city limits, and to haul or cause to be hauled to such crematories trash and garbage of all kinds, and cause the destruction of the same therein." In Kirk v. McTyeire, 209 Ala. 125, 95 So. 361, we said, without reference to this statute, that "a suitably located and properly operated plant for burning garbage is not a nuisance. 29 Cyc. p. 1174." And likewise:

"The authoritative assumption by the municipality of the exclusive function of collecting in wagons and carrying, in properly inclosed receptacles, through the city's streets to a common point, the garbage, refuse, or débris accumulating in the city, is the exercise of the police power, and is hence not the creation of a public or private nuisance of which property owners on thoroughfares so used to transport such matter can successfully complain. 2 Dillon (5th Ed.) § 678; 28 Cyc. pp. 715, 717, 719."

See, also, 19 R.C.L. 128, § 406.

That case was an attempt by bill in equity at the suit of contiguous property owners to prevent the erection by the city of Bessemer of this very incinerator plant, and also to prevent the transportation of garbage on an abutting street--at least we so infer.

In City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771, speaking of the statute above recited, then section 1282, Code 1907, we said:

"These are governmental functions, delegated by the Legislature to municipalities, designed primarily to promote public health and comfort to the public as a whole, and the municipality is not liable for the torts of its agents or employés occurring while in the exercise and in the performance of that governmental function."

In Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So 737, we held that when an act is made lawful by legislative sanction, annoyances in connection therewith must be borne by the individual subject to this qualification, that the act must be done without negligence...