Duy v. Alabama Western R. Co.
Decision Date | 24 December 1911 |
Citation | 175 Ala. 162,57 So. 724 |
Parties | DUY v. ALABAMA WESTERN R. CO. |
Court | Alabama Supreme Court |
On Rehearing, February 17, 1912.
Appeal from City Court of Birmingham; H. A. Sharpe, Judge.
Action by G. B. Duy against the Alabama Western Railroad Company for damages for obstructing street. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
The complaint is as follows: Count 1:
The demurrers were as follows:
Count 2 is as follows:
The same demurrers were filed to the second as to the first count.
Brown & Murphy and Richard H. Fries, for appellant.
Percy, Benners & Burr, for appellee.
There are two counts in the amended complaint. They will be set out in the report of the appeal.
The questions to which attention is given here arise out of the action of the trial court in sustaining demurrers to these counts.
The first count seeks the recovery of damages to plaintiff's property, abutting on Fifteenth street, in the city of Birmingham, by reason of the permanent obstruction by defendant of that part of Fifteenth street between First and Second avenues and beyond, across Second avenue from the lots of plaintiff. The theory of this count is that a public nuisance, wrought by the obstruction of a public highway, inflicted special, particular damage to plaintiff's property. In this count the allegation is that the obstruction was made "on or about the 15th day of August, 1906." On July 31, 1907 (Local Acts 1907, pp. 644, 645), a local act was approved, whereby the mentioned section of Fifteenth street and two related alleys were vacated. This act, omitting the title, will be set out in the report of the appeal. Our construction of its second section will be later stated.
Independent of averment, the courts of this state take judicial notice of public acts of the Legislature, though local in application. Badgett v. State, 157 Ala. 20, 48 So. 54; McCarver v. Herzberg, 120 Ala. 523, 25 So. 3; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65.
In cases where the Legislature may enact with a retroactive effect, the courts will not construe the enactment to control or affect past transactions or matters, unless the Legislature expresses a clear intention to give the enactment a retroactive operation. Gould v. Hayes, 19 Ala. 438, 451; Barnes v. Mobile, 19 Ala. 707, 709; Smith v. Kolb, 58 Ala. 645; New Eng. Mort. Co. v. Board of Revenue, 81 Ala. 110, 1 So. 30; Wetzler v. Kelly, 83 Ala. 440, 3 So. 747; 4 May. Dig. p. 859.
There is nothing in the mentioned local act evincing any legislative intent to confirm or ratify from its inception the obstruction described before the vacation accomplished by the local act, as was the express purpose of the enactment considered in State ex rel., etc., v. L. & N. R. R. Co., 158 Ala. 208, 48 So. 391.
So the first count must, if its sufficiency upon demurrer is...
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