City of Selma v. Jones

• Decision Date: 16 May 1918
• Docket Number: 2 Div. 664
• Citation: 79 So. 476,202 Ala. 82
• Parties: CITY OF SELMA v. JONES.
• Court: Alabama Supreme Court

79 So. 476

202 Ala. 82

CITY OF SELMA v. JONES.

2 Div. 664

Supreme Court of Alabama

May 16, 1918

Rehearing Denied June 20, 1918

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Bill by Emma Jones against the City of Selma to abate a nuisance. From an order overruling a demurrer to the bill, defendant appeals. Affirmed.

Leo Leva and Reese & Reese, all of Selma, for appellant.

Arthur M. Pitts, of Selma, for appellee.

MAYFIELD J.

Appellee filed her bill against appellant to abate a nuisance. The alleged nuisance consisted of a dump pile, created and maintained by the city, near to the premises of complainant. The nuisance is alleged in the fifth and sixth paragraphs of the bill as follows:

"(5) That the said dumping place is not a fit or suitable plant to be established in a residential section of the city; that the plant, as well as the way in which the same is operated, is a nuisance, which is continual, and constantly recurring; that the board of health of Dallas county has declared the said dumping place where located a nuisance, and has requested the city of Selma through her duly authorized officers to abate the same; that the city of Selma, by and through her duly authorized officers, agents servants, and employés, continues to operate the said dumping plant on the said place; that unless the city of Selma, her officers, agents, servants, and employés are restrained from operating the said dumping place, your complainant will be compelled to inhale and smell air polluted by the noxious odors vapors, and gases that arise from the opening in the sewer and from the emptying of the cans of human feces and excreta that has remained closed in said cans for almost a week's time.

"(6) That complainant's home has been rendered valueless as a home by the operation of said plant; that it is a place unfit for a human being to reside in as long as the city is permitted to continue to so operate said dumping place on said lots in said residential section of the city of Selma; that the injury to her property as above set forth is of such a nature, and so recurring each day, that she cannot be fully compensated in damages; that under the facts as above set forth she has not an adequate remedy at law; that the city started to operate the said dumping place in the year 1917, and is continuing to operate the same."

The city demurred to the bill, assigning various grounds, among them being the grounds that the bill showed the defendant to be a municipality, and as such authorized by law to establish and maintain a sanitary system, and that the alleged nuisance was a necessary part of such system, and that that which is authorized by law cannot be a nuisance; that the bill showed complainant to have a plain and adequate remedy at law; that the bill showed a public nuisance, and showed no damages or injury to the complainant, different in kind from that suffered by the public; that to grant the relief prayed would, instead of abating a nuisance, create one, in that it would destroy the sanitary system of the city. The trial court overruled the demurrer, and the respondent appeals.

We are of the opinion that the trial court ruled correctly. The fact that the city is given authority by law to establish and maintain a sanitary system for the community, and that the dump pile is a part thereof, does not prevent the acts complained of from constituting a private or a public nuisance. Such authority, conferred on the city by law, is to promote the health and comfort of the citizens, and not to impair or destroy the health or comfort of any of the citizens. There does not appear on the face of the bill any attempt thus far on the part of the Legislature to confer authority on the city to do what would otherwise constitute a nuisance. Hence the question is not here presented whether or not the Legislature could authorize the city to do what without such authority, would be a nuisance. This question was presented to this court in the cases of Adler v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889, and Murkerson v. Adler, 178 Ala. 622, 59 So. 505. In the first of these cases it was ruled that:

"Where a county, through a commission created by a local act authorizing a sewer system and purification plant constructed said plant, after contracting with an individual to pay for the cost of the plant and its maintenance, in consideration of the exclusive right to use the products of the plant, the county stipulating for the exclusive control of the purification of the sewerage, and the plant was built and the individuals operated it, and paid the cost thereof directly, but the plant was unequal to the accomplishment of its purpose, and a nuisance was created by its operation, in the absence of an express statutory provision, it will not be assumed that it was intended to legalize an act necessarily resulting in a nuisance, nor that the system would have been constructed except for treatment of the sewerage in a purification plant, and hence the proximate cause of the nuisance was not the statutory authorization, but was the operation of the plant by the individual, and consequently he was liable therefor." 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 1889.

The following expression, used in the opinion in that case, may be applied to this case:

"Those are joint tort-feasors who contribute to the tort with common intent, *** not of course the intent to work injury to the plaintiff, but the intent to maintain the purification plant which did result in injury. If it be assumed for a moment that the defendants co-operated with private individuals, as they did with the county and its commissioners, it would seem to be clear that they thereby became liable with those individuals as joint tort-feasors, not because defendants furnished the money with which to build the plant, nor because they

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