City of Troy v. Watkins, 4 Div. 752

• Court: Supreme Court of Alabama
• Writing for the Court: MAYFIELD, J.
• Citation: 78 So. 50,201 Ala. 274
• Parties: CITY OF TROY v. WATKINS.
• Decision Date: 14 February 1918
• Docket Number: 4 Div. 752

78 So. 50

201 Ala. 274

CITY OF TROY
v.
WATKINS.

4 Div. 752

Supreme Court of Alabama

February 14, 1918

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Bill in equity by J.M. Watkins against the City of Troy. From decree overruling demurrers to the bill, the City appeals. Affirmed.

C.C. Brannen, of Troy, for appellant.

John H. Wilkerson, of Troy, for appellee.

MAYFIELD, J.

The bill is by an abutting property owner against the city of Troy, and seeks to enjoin the city or municipality from obstructing or vacating a certain street, or a part of a certain street, of that city, whereon complainant's property abuts. The bill therefore of necessity shows that complainant's ingress and egress is by such obstruction interfered with, and that consequently he suffers injuries different in degree and kind from those of the public on account of the alleged nuisance. The bill was demurred to by the city for want of equity and of proper parties complainant. The trial court overruled the demurrers, and the city prosecutes this appeal.

The bill presents as clear and certain a case for relief by an abutting owner against a municipality for obstructing and wrongfully vacating a public street, as we find reported in the books, and there are many such reported cases. It not only shows an unauthorized vacation and abandonment by the municipality of one of its streets upon which abuts complainant's property, but shows that it has without authority of law converted the part of the street so vacated into another and different public use, viz. that as a public cemetery. The complainant is thus shown not only to be wrongfully deprived of the use of the street abutting his property as a way of ingress and egress, but to be injured in the fact that a public cemetery is thus without lawful authority put next to his property, being platted and sold as cemetery lots to the public and dead bodies being interred therein; and it is further shown that drastic ordinances have been passed to prevent the removal of such bodies from the street so abandoned and wrongfully converted to this use.

It is first insisted by the city that as complainant's property is bounded on other sides by other streets his ingress and egress is not destroyed, and, consequently, that his injury is not different in kind from that of the public, with the result that he cannot maintain this bill.

The case is quite different from that of Jackson v. B.F. & M. Co., 154 Ala. 464, 45 So. 660. In that case there was express legislative authority to vacate and obstruct the street, and the complainant did not abut the part of the street so vacated. Public highways belong to the public from side to side and from end to end;...