Duy v. Alabama Western R. Co.

Decision Date24 December 1911
Citation175 Ala. 162,57 So. 724
PartiesDUY v. ALABAMA WESTERN R. CO.
CourtAlabama 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.

Mayfield J., dissenting.

The complaint is as follows: Count 1: "Plaintiff claims of defendant the sum of $4,000 damages by reason of the following facts, to wit: Plaintiff avers that on and before to wit, the 15th day of August, 1906, he was owner of the following described lots or parcels of ground in Birmingham Alabama, described as follows, to wit: Lots twelve (12) and thirteen (13) in block ninety (90) according to the present plan and survey of said city. Said lots form a rectangle 100 feet square on the northeast corner of Fifteenth street and Second Avenue North, in said city. Plaintiff further avers that on and for more than twenty (20) years prior thereto, to wit, the 15th day of August, 1906, the said Fifteenth street was a public street, and had been used by the public as such and said street extended northwardly from First avenue, and in front of plaintiff's said lot on one of its sides, and to the limits of the said city on the north, and that the said street between First and Third avenues was much traveled by the public in going to and from First avenue, and other parts of said city, and many people passed in front of plaintiff's said lot in going to and from First avenue and other parts of said city. Plaintiff further avers that the part of said Fifteenth street, between First and Second avenues was much used by the public in passing to and from First avenue and other parts of said city, and to that part of Fifteenth street in front of plaintiff's said lot, and to that part of Second avenue in front of plaintiff's said lot. Plaintiff further avers that the value of plaintiff's said lot is dependent on its accessibility to the public, and on the number of people and travel which pass in front of said lot. Plaintiff further avers that on or about the 15th day of August, 1906, defendant built across Fifteenth street, between First and Second Avenues North, in the city of Birmingham, Alabama, a freight house, or depot, thereby permanently obstructing said street, and that the defendant since said date has used the said part of said street for its freight depot terminal, and by reason of said obstruction the said part of said street has been closed to public travel. Plaintiff further avers that the said part of said Fifteenth street so obstructed is about, to wit, 80 feet from plaintiff's said lot, above described, and diagonally across Second avenue from plaintiff's said lot. Plaintiff further avers that by reason of said obstruction in said street as aforesaid the public travel to and from First avenue and other parts of said city, as set out above, has been largely diverted from that part of Fifteenth street and Second avenue on which plaintiff's property as above described abuts, and by reason thereof plaintiff's property made less valuable, to the great damage of plaintiff as aforesaid. Plaintiff further avers that there are one or more lines of electric cars run on said First avenue, and that by reason of said obstruction in the said street said car lines are rendered less convenient and less accessible to the occupants of plaintiff's said property, thereby rendering plaintiff's said property less valuable, and greatly damaging plaintiff as aforesaid. Wherefore plaintiff sues."

The demurrers were as follows: "It appears from the complaint that the obstruction of the street complained of is a public nuisance, and the plaintiff does not show such special injury as entitles him to maintain an action for damages. It does not appear that plaintiff's lot abuts on that portion of Fifteenth street which it is alleged it obstructed by defendant's freight house and depot. The complaint shows no such special injuries or damage done plaintiff as entitle him to maintain this suit. For aught that appears, plaintiff is not deprived of reasonably free access to and from said lot. It affirmatively appears that said Fifteenth street and said alleys alleged to have been so obstructed have been duly, properly, and legally vacated as public streets and public thoroughfares. No facts are set forth which give this plaintiff the right under the act of the Legislature referred to to maintain this action on account of any special injuries done to him."

Count 2 is as follows: "Plaintiff claims of the defendant the further sum of $4,000, because heretofore, to wit, on July 5, 1877, the Elyton Land Company conveyed to the mayor and aldermen of the city of Birmingham, Alabama, certain streets, avenues, and alleys in said city for the use and benefit of the general public, and for no other purpose, and among other streets so dedicated Fifteenth street, between First avenue on the south and Fifth avenue on the north. That on and since the 15th day of August, 1906, the plaintiff has been the owner of lots 12 and 13, in block 90, according to the Elyton Land Company's survey, in said city, and has used the said property and improvements thereon for a storehouse. That the said defendant on, to wit, the 15th day of June, 1907, erected and still maintains a brick freight house, a permanent structure, on said Fifteenth street, between First and Second avenues, in said city. That on July 31, 1907, the Legislature of the state of Alabama enacted an act entitled 'An act to vacate the dedication of the following alleys and part of the street in the Elyton Land Company's survey in the city of Birmingham--the alley bisecting block 94 and the alley bisecting block 95 and that part of Fifteenth street lying between the north line of First avenue and the south line of Second avenue, and to provide compensation for any property owner injured thereby.' Such act appears on pages 644 and 645 of the Local Acts of said state of 1907. That said act provides that any property owner who may sustain any special injury by virtue of any structure erected in or across the portion of said street or alleys vacated hereby may bring one suit against the person or corporation maintaining such structure and recover all such damages, including future damages, which he may sustain in an action at law. That said plaintiff has suffered and will suffer in the future all the damages mentioned in the first count of this complaint, which first count is hereby adopted and made a part of this count, and has also been deprived by said structures on said streets and alleys of access to and ingress from said First avenue by way of said Fifteenth street. That the approach to his said property has been thereby rendered less accessible to customers and intending customers, and that the trade of the general public has been thereby deflected or diminished, and that all access to said Fifteenth street, between First and Second avenues, has been thereby entirely cut off. That a map of said blocks 90, 94, and 95, and surrounding territory, is hereto attached, marked 'Exhibit A,' and made part of this complaint. That the red cross marked on said map indicates the freight house of said defendants on said Fifteenth street, between First and Second avenues."

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.

McCLELLAN J.

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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