Columbus & W. Ry. Co. v. Witherow

• Citation: 3 So. 23,82 Ala. 190
• Court: Supreme Court of Alabama
• Decision Date: 29 July 1887
• Parties: COLUMBUS & W. RY. CO. v. WITHEROW.

3 So. 23

82 Ala. 190

COLUMBUS & W. RY. CO. v. WITHEROW.

Supreme Court of Alabama

July 29, 1887

Appeal from city court, Birmingham; HENRY A. SHARPE, Judge.

Bill in equity for injunction against railroad embankment in public street as nuisance. On motion to dissolve.

The bill in this case was filed on the thirteenth of June, 1887 by R. W. Witherow, a non-resident, against the Columbus &amp Western Railway Company, a corporation organized under the General Statutes (Code, §§ 1821-1859) for the purpose, as declared in the articles of incorporation, of building a railroad between Goodwater in Coosa county and Birmingham and sought to enjoin and restrain the defendant from the further construction of an embankment in one of the streets of the town of Leeds, known as "Twelfth Avenue," on the ground that the embankment would be a public nuisance and would greatly injure and depreciate the value of two lots owned by the complainant, which abutted on the avenue; and she filed her bill "on her own behalf, and on behalf of such other persons as may associate themselves herein having a common interest in the objects of this suit." The bill alleged that the town of Leeds was duly incorporated under the General Statutes of Alabama; that the avenue and streets of said town were dedicated to the public, "some three years ago, by J. A. Montgomery, who then owned the lands upon which they are located; and a large number of lots in said town were sold by him, bounded by the streets and avenues so dedicated, and among them the two lost now owned by complainant; that he said streets and avenues so dedicated have been accepted by the public, but the fee in said streets was never conveyed to the said town of Leeds;" and that she, complainant, "is the owner in fee of the lands in front of her said lots, to the middle of the said street, or avenue, subject to the right of the public to use it for the ordinary purposes of a street." It was alleged, also, that the defendant "has never paid, or offered to pay, complainant, any compensation for the damages to her said property by the construction of said road, and there has been no agreement between them fixing the compensation to be paid complainant therefor."

An answer to the bill was filed by the defendant, denying the complainant's ownership of any part of the street in front of her lots, but admitting the dedication of the streets and avenues to the public use, by J. A. Montgomery, who owned the property before the town of Leeds was incorporated, and who sold lots, prior and subsequent to the incorporation, laid off with reference to these streets and avenues; admitting its intention to construct its road-bed along and through Twelfth avenue, and to erect an embankment in front of complainant's lots, from 8 to 13 feet high; claiming the right to do so under certain condemnation proceedings had before the incorporation of the town, and also by permission of the corporate authorities of the town; and further claiming the right, under the General Statutes, to use, cross, and occupy any public road or highway. These proceedings for the condemnation of the right of way, it was alleged, were instituted on the twenty-third of February, 1887, "against J. A. Montgomery, F. Y. Anderson, and G. B. West," and were carried by appeal into the circuit court, whereby damages were assessed by a jury, during the May term, 1887, which were paid by the respondent, and accepted by said Montgomery, Anderson, and West. It was alleged, also, that the town of Leeds was incorporated in May, 1887, "and thereafter took charge of the public roads within its corporate limits, including said avenue;" that the complainant purchased her lots, at what time is nowhere stated, with full knowledge of the dedication of the streets to the public use by Montgomery, and subject to all the rights therein acquired by the public. The answer denied that the respondent had committed any nuisance, which worked or could work any special damage to the complainant; and averred its pecuniary ability to pay any judgment for damages, which the complainant might recover in an action at law.

After answer filed, the defendant submitted a motion to dissolve the injunction, both for want of equity in the bill, and on the denials of the answer; and the decree overruling this motion is now assigned as error.

Chisholm & Whaley, for appellant.

Smith & Lowe, contra.

SOMERVILLE C.J.

The prima facie case made by the bill undoubtedly entitled the complainant to the relief of a court of equity through the aid of an injunction, the purpose of which may be both protective and prohibitory. The allegations of the bill show that the complainant is the owner in fee of two lots in the town of Leeds, a municipality incorporated under the general laws of the state, and that said lots fronted or abutted on one of the public streets, known as "Twelfth Avenue." The title was derived from one Montgomery, who, about three years previous, had laid off the town and dedicated the streets and avenues for the ordinary uses to which such public highways are commonly devoted. The ultimate fee in such avenues or streets is averred to be in the complainant, subject to the public easement implied by such dedication. It is averred that the defendant railroad company is proceeding to construct a railroad track through the middle of such avenue, and to raise an embankment for that purpose, from 8 to 13 feet high, without the consent of complainant, or any proceedings of condemnation, or other authority of law; that this structure will cut her off from the business part of the town, and depreciate the value of her adjoining lots about 50 per cent., and thus constitute a public nuisance resulting in special injury to her.

Taking these facts to be true, the authorities are full and numerous in support of the equity of the bill. Unless authorized by some law, in consonance with the provisions of the constitution, such use of the public streets of an incorporated town, presumptively, would be unauthorized by the original dedication, and would prima facie be a special damage to the complainant, which could be restrained by injunction at her instance, she being an adjacent property owner. 1 High, Inj. (2d Ed.) §§ 389, 398, et seq.; Perry v. Railroad Co., 65 Ala. 400; 2 Dill. Mun. Corp. (3d Ed.) §§ 707, 708; Railroad Co. v. Railroad Co., 75 Ala. 275; Mills, Em. Dom. §§ 128-130; Railroad Co. v. Burkett, 42 Ala. 83. The court did not for these reasons err in refusing to dissolve the injunction upon the alleged ground that the bill was wanting in equity. This, we repeat, is plain under the authorities.

It is insisted, further, that the denials of the answer were such as to authorize a dissolution of the injunction, and this we proceed to consider. And, pertinent to this inquiry, the settled rule is that where the allegations of fact in the bill are positive, and the denial of them in the answer is merely upon information and belief, the answer will not warrant the dissolution of the injunction. Calhoun v. Cozens, 3 Ala. 498. The answer can be considered, on a motion to dissolve the injunction, only so far as it is responsive to the allegations of the bill; and new or affirmative matter, not so responsive, but defensive in nature, will not be considered for any purpose. Nor will the mere denial of legal conclusions, properly deducible from the facts stated in the bill, avail anything. The denial must be of material facts alleged in the bill, and must be full clear, and...