City of Birmingham v. Scogin

• Decision Date: 05 November 1959
• Docket Number: 6 Div. 449
• Citation: City of Birmingham v. Scogin, 269 Ala. 679, 115 So.2d 505 (Ala. 1959)
• Parties: CITY OF BIRMINGHAM v. Mrs. George A. SCOGIN et al.
• Court: Alabama Supreme Court

Page 505

115 So.2d 505

269 Ala. 679

CITY OF BIRMINGHAM v.Mrs. George A. SCOGIN et al.

6 Div. 449.

Supreme Court of Alabama.

Nov. 5, 1959.

J. M. Breckenridge, Birmingham, for appellant.

James & Beavers, Birmingham, for appellees.

STAKELY, Justice.

This is an appeal by the City of Birmingham, a municipal corporation, from a decree granting a temporary injunction based on the bill of complaint as last amended filed against the City of Birmingham by the complainantsMrs. George A. Scogin, Mrs. J. B. Parker and Mrs. Forrest R. Blair.§ 1057,Title 7, Code of 1940.The hearing for a temporary injunction was before the court on May 27, 1959.

The bill of complaint alleges that the respondent, the City of Birmingham, a municipal corporation, was operating a garbage dump on land more particularly described in a map which is marked Exhibit A and made a part of the bill of complaint, which land is separated from the complainants' land by a railroad right of way, that said city through neglect or carelessness and unskillfulness of its officers, agents, servants or employees, has permitted the garbage dump to become a health hazard to complainants and to become a breeding place for germs, rodents and vermin and that the city through its agents, officers, servants or employees has operated the garbage dump and has suffered the area in the immediate vicinity of the complainants' property through neglect, carelessness and unskillfulness to become offensive, obnoxious and detrimental to the health of complainants and other residents of the area and that the existence of such condition has continued for such a length of time as to raise the presumption of knowledge on the part of the City Commission of Birmingham, that demands have been made upon the city to abate this condition and that the city has refused, that the premises being used as a garbage dump are in a residential district of the city, that complainants have an investment of thousands of dollars in their homes and that the continued operation of the garbage dump in the above described manner will diminish, if not entirely destroy, the rental and sale values of the complainants' property, that inconvenience and damage to the complainants by reason of the negligent, careless and unskillful operation of the garbage dump are permanent, continuous and constantly recurring so that complainants have no full, adequate remedy at law, that the garbage dump at its present location is not a fit or suitable place for a garbage dump and is a nuisance, that unless the city is restrained from the operation of the garbage dump complainants will be compelled to smell noxious odors, vapors and gases that arise from the dumping of the garbage, that the lands on which the properties of the complainants are located and the garbage disposal operation is now being carried on is in an A residential property zone as now classified by the existing zoning laws of the City of Birmingham and the operation of a landfill garbage disposal dump as now carried on by the respondent, is prohibited by the terms of the aforesaid zoning ordinance and is unlawful.

In the prayer of the billthe complainants seek a temporary injunction immediately enjoining the City of Birmingham from the further use and operation of the garbage dump in the area in the immediate vicinity of the property of the complainants.Upon a final hearing of the cause the complainants pray that a permanent injunction be issued against the respondent prohibiting it from further operating the garbage dump in the area as hereinabove described.

The map attached to the bill of complaint and marked Exhibit A shows that the homes of the three complainants are built on lots which abut in the rear on a railroad right of way.Going to the evidence for the moment, it shows that the City of Birmingham purchased the land across the railroad right of way on April 2, 1952.This deed was recorded in the office of the Judge of Probate of Jefferson County, Alabama, on April 3, 1952.The deed recities a consideration of $9,000 and includes the land conveyed thereby described in Exhibit A to the bill of complaint upon which the garbage disposal area involved in this suit is located.The complainants purchased their property at dates later than the date when the City of Birmingham purchased its property.The map shows that the land purchased by the City of Birmingham lies along the railroad right of way and is bisected by a creek which runs from north to south through the land.The land across the creek has been used in the past by the city for the disposal of garbage.A portion of the land lying between the creek and the properties of the complainants had been used for garbage disposal for about two months prior to the institution of this suit.

We set out in substance the testimony of each of the three complainants as follows.

Mrs. George A. Scogin, one of the complainants, testified that the City of Birmingham was operating a garbage dump on land descirbed in Exhibit A to the bill of complaint and this is separated from the property of the complainants by a railroad right of way, that the city began dumping in the area immediately across the railroad right of way about two months prior to the date of the hearing.She testified that she had observed noxious odors almost every day and that when the odors appear she goes inside and turns on the air conditioner.This complainant further testified that she purchased her house in 1953, paying $7,700 for the property, that the property is now worth about $8,000.She further testified that prior to two months before the hearing the city had operated a garbage dump across the creek from where they are now dumping and accordingly in the past two months have come closer to her property.She estimated the right of way of the railroad between her property and the garbage dump area was about 25 feet wide and not 100 feet wide.She did not smell odors prior to two months ago and the odors were more intense early in the morning and late in the afternoon.The city had used the area across the creek from where they are now dumping for a period of about four years.

Mrs. J. B. Parker, another complainant, testified that she lived on the other side of Mrs. Scogin and that her property backs up to the railroad track.She bought her house six and one-half years ago.The city was dumping in the area across the creek at that time but she did not know it.There were trees and bushes that obscured the view of the dump.There were no noticeable odors at her house prior to the time dumping began on her side of the creek but odors were very noticeable since then.She goes to work at seven o'clock in the morning and returns home at 6:30 p. m. When she returns home she turns on the air conditioner.She went over to the dump about three weeks prior to the hearing when they were not working over there and found some exposed garbage and some old water standing.The same odor that comes from her garbage can comes from the garbage dump.

Mrs. Forrest Blair, one of the complainants, testified that she had lived in the vicinity of the city dump for five years.She paid $8,100 for her house and its value immediately before the city started dumping was $7,100.She had observed odors since the city started dumping two months ago.She had odors before two months ago from the old dump across the creek.She lives about 100 feet from the dump.Dumping is carried on all day long.She has big cock roaches in her back yard.She lives next door to Mrs. Scogin, another complainant.She had not noticed any odors from the creek.

Other residents of the neighborhood gave testimony substantially similar to the testimony of the complainants.

In addition Roy E. Smith, Jr., a witness for the complainants, testified in substance that he was a real estate broker licensed since 1938 and had 'practiced real estate' the last thirteen years and that he specializes in real estate in the western section and that Court Q and Quincy Court are in the western section.The houses in the vicinity of Court Q and Quincy Court range in price from $7,500 to $12,000.In his opinion there has been a lessening in the value of the houses in the vicinity of the dumping operations by reason of the dumping.

Mr. John Steineicher, a witness for the complainants, testified in substance that he was Planning Director of the City of Birmingham and that the official zone map of the City of Birmingham showed that the area where the complainants' houses are located and where the garbage disposal area is located is zoned A-Residential under the Zoning Ordinance of the City of Birmingham.The pertinent part of the zoning ordinance was introduced in evidence.

Ernest B. Reed, a witness for the complainants, testified in substance that he lived on the road leading to the dump and that he has gone over to the dump four times.On his first visit there was a lot of odor and quite a few flies and there was garbage that was not completely covered.On his second visit there was odor but garbage was uncovered in just a few small spots.He noticed a few flies.Trucks going to the garbage dump start coming by his house at 4 a. m. and between 4 a. m. and 7 a. m. a garbage truck passes his house at the rate of one every fifteen minutes.He noticed two drag lines and a bulldozer on the dump.He used to graze cattle in the area where the city has a temporary road to the garbage area and he had moved his cattle out but was not required to do so by the owner of the land over which the temporary road is constructed.The city has improved the street going by his house with something but he does not think it is paving.

The City of Birmingham, introduced in its behalf the affidavit of Guy M. Tate, Jr., Director of the Bureau of Sanitation of the Jefferson County Department of Health, wherein he says that he inspected the city's garbage disposal area on May12, 1959, at 3 p. m. and on May...