City of Florence v. Woodruff
Decision Date | 18 April 1912 |
Citation | 59 So. 435,178 Ala. 137 |
Parties | CITY OF FLORENCE ET AL. v. WOODRUFF ET AL. |
Court | Alabama Supreme Court |
On Rehearing, June 29, 1912.
On Rehearing.
Appeal from Chancery Court, Lauderdale County; W. H. Simpson Chancellor.
Bill by Mollie V. Woodruff and others against the City of Florence and another. From a decree overruling demurrers to the bill defendants appeal. Reversed and rendered as to defendant city, and affirmed as to the other defendant.
Geo. P. Jones, of Florence, for appellant Spaulding. W. H. Mitchell and John L. Hughston, both of Florence, for appellant City of Florence. Paul Hodges, of Florence, for appellees.
The bill is one to abate a public nuisance and, incidentally, to recover damages in consequence of its maintenance. The nuisance is alleged to consist of scales and platforms in a public street, in the city of Florence, located and maintained at a point immediately in front of two lots of plaintiffs', which about upon such street, which lots are suitable for and used as business property; it being averred that the lots are rendered much less valuable on account of the location and maintenance of the alleged nuisance. The bill alleges that the scales are owned and operated by the defendant Spaulding, but that this is by permission and under a license from the city of Florence; and that the same are used and operated for public weighing of articles of merchandise and commerce marketed in the municipality; that the defendant Spaulding, after request, has declined and refused to remove the obstruction or abate the nuisance; and that the city declines and refuses to attempt to interfere in such unwarranted use of the street, but authorizes and allows the unlawful use of the streets by licensing the said Spaulding to so operate and maintain the public scales in the streets, thereby illegally interfering with plaintiffs' and the public's ingress to and egress from the said two lots and the buildings thereon. The respondents separately demurred to the bill, and, their demurrers being overruled, they prosecute this appeal.
The bill unquestionably contains equity. Sloss Co. v. Johnston, 147 Ala. 384, 41 So. 907, 8 L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285; Albes' Case, 153 Ala. 523, 45 So. 234; Id., 164 Ala. 356, 51 So. 327; Tyson v. First National Bank, 142 Ala. 90, 38 So. 761. These cases fully settle plaintiffs' right to such special damages and injury as will authorize them to maintain this bill, under its present averments, to abate a public nuisance.
A restatement of the principles of law upon which individuals may maintain such a bill as this is unnecessary, because so well and fully stated in the cited cases. Indeed, this bill was evidently filed with these cases in view, and, so far as its equity is concerned, its averments are sufficient.
The law applicable to this concrete case is well stated by Mr. Elliott, in his valuable work on Roads and Streets (3d Ed.) vol. 2, § 836, pp. 263-265, as follows:
The authorities as to such obstructions in streets are collected in note to Callanan v. Gilman, 1 Am. St. Rep. 831 840-844, and in Town of Spencer, 12 L. R. A. 115, and the rules applicable to concrete cases like this are well stated, as follows: ...
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