Ex parte Ashworth
| Decision Date | 26 June 1920 |
| Docket Number | 6 Div. 97 |
| Parties | Ex parte ASHWORTH. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition by John Ashworth for certiorari to the Court of Appeals, to review and revise the judgment and decision of said court rendered in the case of Birmingham Railway, Light & Power Co. v. John Ashworth, 86 So. 82. Writ denied.
Estes & Jones, of Bessemer, for appellant.
Tillman Bradley & Morrow, of Birmingham, for appellee.
This action is by John Ashworth against the Birmingham Railway Light & Power Company to recover damages alleged to have resulted to the plaintiff from an obstruction in Fairfax avenue, a public street in the city of Bessemer, and the willful and negligent failure and refusal of the defendant to remove such obstruction after demand made on it by the plaintiff.
The plaintiff, Ashworth, was under a contract with one Bradley to remove a building from one point on Fairfax avenue to another point on said avenue, a distance of about three blocks. The complaint alleges that as a proximate consequence of such obstruction Ashworth was greatly delayed in moving said building; was caused to lose time; pay extra wages for hands; was required to cut the building and move it in two parts, and then join it together on the new location, which occasioned extra expense, loss of the use of tools and equipment; and that he was greatly vexed, inconvenienced, and harassed and worried on account of such delay and interference as a result of such obstruction.
After averring that Fairfax avenue is a public street or highway, the complaint avers:
"That said defendant had and maintained a nuisance, consisting of posts, or poles, set in Fairfax avenue, and between said Owen and Bradley streets, so that it was impossible for plaintiff to move said house along Fairfax avenue, and which avenue was the only reasonably safe way or route by which said house could be moved, and plaintiff avers that he requested and demanded of said defendants that they remove, and that it became and was their duty to remove said poles and posts so as to allow the plaintiff a way or room enough to move said house along said avenue; and plaintiff avers that, notwithstanding said demand and duty of the defendants, they willfully and negligently failed and refused to remove said poles, or posts, so as to allow plaintiff to move said house as he undertook and was wont to do."
The demurrers challenged the sufficiency of the complaint on the grounds, among others:
"(12) For that it does not appear that said poles were unlawfully put or maintained in said street by the defendant; (13) for aught that appears said poles were not maintained at said place, or places, by leave of and with the consent of the municipality in which said street is."
In actions to recover damages for the maintenance of a public nuisance, it is not enough to aver as a mere conclusion that the thing complained of is a nuisance, but to withstand an appropriate demurrer the complaint should state sufficient facts to overcome the presumption that the act complained of is lawful. Bianki v. Gr. Am. Exposition Co. et al., 3 Neb. (Unof.) 656, 92 N.W. 615; Encyc. Plead. & Pr. p. 1109(3); O'Brien v. St. Paul, 18 Minn. 176 (Gil. 485); Parrot v. Cincinnati, etc., R.R. Co., 3 Ohio St. 330.
While this court has uniformly ruled that a permanent structure placed and maintained on a public street, in the absence of express statutory authority, though permitted and licensed by the municipal authorities, is a public nuisance ( Costello v. State, 108 Ala. 45, 18 So. 820, 35 L.R.A. 303; Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; Perry v. N.O., M. & C.R.R. Co., 55 Ala. 413, 28 Am.Rep. 740; L. & N.R.R. Co. v. Mobile, J. & K.R.R. Co., 124 Ala. 162, 26 So. 895; Mobile v. L. & N.R.R. Co., 84 Ala. 115, 4 So. 106, 5 Am.St.Rep. 342), yet it is also well established that the state in the exercise of its sovereign power of police, by legislative enactment, observing constitutional restrictions and limitations, may grant to cities and towns the power to make use of their streets for the construction and maintenance of public utilities, and when so authorized the construction and maintenance of structures, such as posts and poles, in a street for such purposes, is not per se a nuisance (...
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