Crofford v. Atlanta, B. & A.R. Co.

• Decision Date: 30 June 1908
• Citation: 158 Ala. 288,48 So. 366
• Parties: CROFFORD ET AL. v. ATLANTA, B. & A. R. CO. ET AL.
• Court: Alabama Supreme Court

48 So. 366

158 Ala. 288

CROFFORD ET AL. v. ATLANTA, B. & A. R. CO. ET AL.

Supreme Court of Alabama

June 30, 1908

Rehearing Denied Jan. 12, 1909.

Appeal from City Court of Bessemer; William Jackson, Judge.

Suit by J. T. Crofford and others against the Atlanta, Birmingham &amp Atlantic Railroad Company and another. From a decree dismissing the bill, complainants appeal. Affirmed.

Estes Jones & Welch, for appellants.

Tillman Grubb, Bradley & Morrow, for appellees.

DOWDELL J.

The only question which differentiates this case from that of Hall et al. v. Atlanta, Birmingham & Atlantic R. R. Co. et al. (decided at the present term) 48 So. 365, is the one relating to the easement of air, light, and view. Counsel for appellants in their brief say: "This case is very much like the case of John A. Hall et al. v. Atlanta, Birmingham & Atlantic Railroad Company et al., submitted with this case. In fact, the real facts in the two cases are practically the same; but the facts as shown by the two bills are different, in that the bill in this case is more elaborate, and sets out more fully the true statement of facts, and also this bill charges in positive terms the infringement of complainant's easement in the avenues and alleys of light, air, and view. His bill also attacks the constitutionality of the act of the Legislature and the ordinance of the city of Bessemer by which the closing up of the alleys is sought to be justified, and the obstruction of the avenues."

As to the constitutionality of the act of the Legislature and of the ordinance of the municipality referred to, this question was presented and passed on in the Case of Hall et al., supra, and adversely to the contention of appellants. We do not understand that there is any contention of a want of power on the part of the municipality, under the legislative grant of powers contained in the charter, to pass the ordinance in question; but the contention is that the ordinance is violative of section 235 of the Constitution of 1901, in so far as it authorizes the taking of private property for public use without first making just compensation for the property taken, injured, or destroyed, etc., as provided by law. It is admitted by the bill that the viaduct being constructed over Berkley avenue was authorized by ordinance of the municipality, and it is not denied that the same is being constructed in conformity with said ordinance. The structure, therefore, being one authorized by law, cannot be said to constitute a public nuisance. The bill shows that the viaduct arches said avenue overhead 30 feet, and that there is a passageway for public travel, left in the middle of the avenue under said arch, 30 feet wide. It is evident, from this, that the right of access of abutting property owners on said avenue to and from their property, is not, by reason of the viaduct, denied them. Moreover, we are of the opinion that the way so left open for public travel is reasonable and convenient.

This brings us to a consideration of the principal question in this case, and one not specially treated of in the Case of Hall et al., supra, and that is the one wherein it is charged in the...