City of Mobile v. Louisville & N.R. Co.

• Decision Date: 21 November 1899
• Citation: 124 Ala. 132,26 So. 902
• Parties: CITY OF MOBILE v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

26 So. 902

124 Ala. 132

CITY OF MOBILE v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

November 21, 1899

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Action by the city of Mobile against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed.

B. B Boone, for appellant.

Gregory L. Smith, for appellee.

DOWDELL J.

The bill in this case is filed by the city of Mobile, a municipal corporation under the laws of Alabama, against the Louisville & Nashville Railroad Company, a corporation chartered under the laws of Kentucky, and doing a railroad business in the state of Alabama and in the City of Mobile, as successor to the rights of the New Orleans, Mobile & Chattanooga Railroad Company, a corporation chartered by the state of Alabama. It is averred in the bill that the complainant is the successor to the rights of the town and city of Mobile in regard to public streets, as derived from its foundation by the French in 1711, through the English and Spanish régimes and the American occupation in 1814, down to the present time, under various and sundry corporate names. It is charged that among such rights there was invested in the inhabitants, or sovereign in trust for them, the ownership of the streets and full right of access to the shores and waters of the Mobile river; that public maps, whether French, English Spanish, or American, recognized and showed such dedication of the shores to the public, and the east and west streets down to the channel, as in use at the respective times. It is charged in particular that what are now called Government, George, Charleston, Savannah, and Augusta streets are, and long have been, public streets, and were, until recently, open and publicly used to tide water, and are so shown on all early public maps. Government and Church streets were parts of the esplanade of the fort founded by the French, existing under different names until 1812, and at the eastern or river end fully dedicated and used for landing and street purposes during that period. Charleston, Savannah, and Augusta streets were dedicated and accepted under their names between 1830 and 1837. The original shore line was at or near the present Water street, but it is alleged that early in American times, and largely before 1836, the city front was advanced out eastwardly to and beyond Commerce street from at least St. Louis street on the north to Monroe street on the south; and later the city was built out further south, the streets being built out in ratio by the municipal authorities, and laid down on the said maps. Copies of said maps were attached as exhibits to the bill. All of said streets named in the bill and exhibits, it is charged, were used by the public for many years prior to 1869, and were recognized as public streets to the water's edge. To the river front is and has always been due the commercial importance of Mobile. It is further alleged and charged that in or about 1866 to 1871 the New Orleans, Mobile & Chattanooga Railroad Company was projected and built through Mobile to the southwest, and its projectors obtained, or pretended to obtain, certain alleged franchises from the then existing municipal authorities, especially, in 1870, the alleged right to inclose a tract extending east of Commerce street to the river, and running from a line 100 feet south of the north side of Government street southwardly almost to Monroe street; as it had, also, in 1869, pretended to obtain the alleged right to inclose from Charleston street south to Elmira, and extending from Royal street to the river. Acting thereunder or otherwise, said railroad company inclosed a portion of Government street, and all of Church street east of Commerce street, and also Augusta and Savannah streets from Royal street to the Mobile river, building on much of the land depots and shops. But it is charged in the bill that said municipal authorities had no constitutional right to make such pretended grant or grants, and that such action was illegal and ultra vires. It is shown that the defendant has succeeded to such inclosures and purprestures, and is in the use or enjoyment thereof, except the east half of Water street between Charleston and Elmira, which was surrendered to the city by agreement in 1880; and it still claims to own the same. It is also shown by the bill that tide water formerly came up to Water street at what is now its intersection with Charleston street, and that, as the land was reclaimed east of Water street, the said Charleston street was extended also eastwardly by public use and the maps; that recently-within three years past-the defendant inclosed Charleston street east of Water street, and by itself or tenants erected buildings thereon, without authority, and maintains the same. It is also charged that the use of the portions of Government and George streets east of Commerce street, and of Charleston street east of Water street, and of Augusta and Savannah streets between Royal and Water streets, denies them to the public, and is an unlawful appropriation of public property to private use, and constitutes a nuisance, affecting complainant and the public. It is also shown that it amounts to depriving the public of the river end of at least five important streets, and the appropriation of them to one corporation; that if only the trustee for the bondholders, under the act of February 24, 1881 (Sess. Acts 1880-81, p. 402), can act as to wharf property,-which is not conceded,-complainant avers that it is, notwithstanding, injured at least out to where the wharf line begins, and that such appropriation is a nuisance, and should be abated. The special prayer of the bill is to perpetually enjoin the defendant from obstructing Government street to the east of Commerce street and north of the south line of Government street continued from Water street to the Mobile river; from obstructing Church street east of Commerce street, Charleston street east of Water street, and Augusta and Savannah streets between Royal and the river; and to compel the defendant to remove all obstructions from such public streets. There is also prayer for general relief.

The defendant answered the bill, and also filed pleas thereto, in which it alleged its right and authority to obstruct all the streets named in the bill except Charleston street by virtue of section 5 of the amended charter of the New Orleans, Mobile & Chattanooga Railroad Company, approved February 12, 1867, and by virtue of certain ordinances adopted pursuant to said section 5 of the amended charter by the mayor and aldermen and common council in September, 1869, and December, 1870. As to where the said streets named in the bill end at Mobile river, the defendant pleads the act of the general assembly of Alabama approved February 24, 1881 (Sess. Acts 1880-81, p. 402), entitled "An act to amend sections 2, 5, 8, 10, 13, 14, 19, 21, 24, 28, 33, of 'An act to adopt and carry into effect the plan for the adjustment and settlement of the existing indebtedness of the late corporation known as the mayor and aldermen and common council of the city of Mobile, which is recommended in the report of the commissioners of Mobile made and laid before the general assembly of Alabama on the 26th of November, 1880, as provided in section 16 of an act of the general assembly of Alabama, entitled "An act to vacate and annul the charter and dissolve the corporation of the city of Mobile, and to provide for the application of the assets thereof in discharge of the debts of said corporation," approved Feb. 11, 1879,"' approved December 8, 1880, as a bar to the right of the city of Mobile to have obstructions removed from said streets where they end at the river or wharf fronts.

The cause was set down for hearing in the chancery court on the sufficiency of the defendant's pleas: (1) As to whether the general assembly of Alabama authorized the obstruction of the streets or public highways named in the bill, or delegated the power to the city of Mobile to authorize the obstruction of said streets as charged in the bill of complaint; (2) as to whether the city of Mobile, by its mayor, aldermen, or common council, had the power or authority to authorize the New Orleans, Mobile & Chattanooga Railroad Company to occupy and obstruct the streets or public highways, as charged and named in the said bill of complaint; and (3) whether the act of the general assembly of February 24, 1881, inhibits the city of Mobile from causing obstructions to be removed from such of its streets as were opened down to the Mobile river, or precludes the city of Mobile from having said streets opened to public use and travel, as prayed in the bill of complaint. On January 21, 1898, the chancery court made and had entered a decree wherein it was "considered, ordered, adjudged, and decreed that said pleas are each sufficient, and that, as such, they be allowed." This decree of the court is now assigned as error.

The sufficiency of defendant's pleas as a defense to complainant's bill is based upon section 5 of the amended charter of the New Orleans Mobile & Chattanooga Railroad Company, approved February 12, 1867, and the several ordinances adopted pursuant to said section 5 of said amended charter by the mayor, aldermen, and common council of the city of Mobile in September, 1869, and December, 1870. The said section 5 and several ordinances so pleaded are set out in full in the pleas. Any right or franchise to the use of the streets of a city for railroad purposes must depend upon legislative sanction and authority. The law is too well settled to admit of question that, in the absence of legislative grant, a city has no power or authority by contract or ordinance to...