Crampton v. City of Montgomery

• Decision Date: 13 April 1911
• Citation: 55 So. 122,171 Ala. 478
• Parties: CRAMPTON v. CITY OF MONTGOMERY ET AL.
• Court: Alabama Supreme Court

55 So. 122

171 Ala. 478

CRAMPTON v. CITY OF MONTGOMERY ET AL.

Supreme Court of Alabama

April 13, 1911

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Suit by F. J. Crampton against the City of Montgomery and others. From an adverse decree, complainant appeals. Affirmed.

Ball &amp Samford, for appellant.

C. C McIntyre and Hill, Hill & Whiting, for appellees.

SOMERVILLE J.

The appellant, F. J. Crampton, filed his bill in the city court praying for a temporary writ of injunction, restraining the city of Montgomery from paving or entering into a contract to pave a certain portion of Madison avenue, in the city of Montgomery, lying east of Hilliard street and abutting on complainant's lands on both sides thereof. Complainant further prays that on final hearing the injunction be made perpetual. The application was set down for hearing under the statute, and on hearing the chancellor rendered a decree denying the writ and withdrawing the temporary order previously granted. From this decree, complainant prosecutes an appeal to this court under section 4531 of the Code of 1907.

In support of the prayer for the temporary writ, the bill shows the following facts and conditions:

1. That section of Madison avenue, the paving of which is sought to be enjoined, consists of a fill or embankment constructed by the city in grading the street. This embankment is from 12 to 25 feet higher than complainant's abutting lands, with a frontage of 363 feet on one side, and 433 feet on the other. The road surface of the embankment is 50 feet wide, whence it slopes on each side about 25 feet to the property line, and from the property line the soil of the embankment slopes continuously out on complainant's lands; the encroachment being about 36 feet wide near the center, with a circular graduation towards either end.

2. That part of the embankment spreading over complainant's lands, as well as that lying within the street, was placed there by the city, and constitutes a continuing trespass upon complainant's property, which he has a right to remove or to have removed, and he prays in the bill that on final hearing the city be compelled by a mandatory writ to remove from his lands all of the foreign material thus wrongfully placed there.

3. As the embankment now stands within the street, it unlawfully imposes upon complainant's lands the service of lateral support; and, if a pavement be laid on the street, this lateral pressure and burden will be greatly increased, to such an extent that, when the adjacent soil is removed as prayed, the embankment will crumble from its sides and collapse, and the paving be thereby destroyed, and the labor and expense thereof to the city and abutting owners will be a complete loss.

4. The pavement is not needed and is not really planned for the benefit of the public, but only for the advantage of property owners further out.

5. If the cost be assessed on the abutting property, it will impose a heavy and unjust burden on the owners thereof, without corresponding benefit.

6. The ordinance ordering the paving in question is invalid, because the affirmative votes of several councilmen were induced by a misstatement as to the attitude of certain property owners interested; their votes being decisive of the passage of the ordinance.

From the foregoing synopsis of the bill of complaint, it is readily apparent that the complainant is suing as a citizen of Montgomery, and as a private property owner; and that, as a citizen, he claims the right to prevent the paving, or the making of a contract to pave, on the ground (1) of the invalidity of the ordinance ordering the improvement, and (2) of the unwisdom and improvidence of constructing an improvement which he, as a property owner, may and will lawfully destroy and render valueless by the withdrawal of necessary lateral support; and, as a private property owner, he claims the right to prevent the paving on the ground (1) of the invalidity of the ordinance, and (2) of the injustice of the assessment that will follow, and the expense to him of resisting it. And, in this latter capacity also, he claims the right to have his land freed from the encroachment of the superimposed soil which furnishes lateral support to the embankment in the street.

The application for the temporary writ of injunction relates only to the paving, or making of a contract to pave, and with this question alone are we concerned on this appeal. It is therefore obvious at a glance that in this respect the equity of ...