First Nat. Bank of Montgomery v. Tyson

• Decision Date: 23 November 1905
• Citation: 144 Ala. 457,39 So. 560
• Parties: FIRST NAT. BANK OF MONTGOMERY v. TYSON.
• Court: Alabama Supreme Court

39 So. 560

144 Ala. 457

FIRST NAT. BANK OF MONTGOMERY v. TYSON.

Supreme Court of Alabama

November 23, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Bill by A. P. Tyson against the First National Bank of Montgomery. From a decree for plaintiff, defendant appeals. Affirmed.

Thos H. Watts, Alexander Troy, and Horace Stringfellow, for appellant.

O. C Maner, for appellee.

DENSON J.

A. P Tyson and the First National Bank of Montgomery owned adjacent lots on the east side of Commerce street, in the city of Montgomery. Tyson's lot was designated as No. 12 and that of the bank as No. 14. Each of the lots abutted the street on its east side. Tyson's lot was south of the bank's lot, and on it he had a three-story brick building. The bank proposed to erect on its lot a six-story building of brick and stone, with four stone columns in front of the building which would project onto the sidewalk from 22 to 26 inches from the building line of the street. Tyson filed the bill in this case to enjoin the bank from erecting the columns, upon the ground that the same, if erected, would be a public nuisance, which would result in special injury to him as an adjacent property owner, in a way different from the injury that would result from the nuisance to the public. A temporary injunction was granted. The defendant answered the bill, incorporating in its answer a demurrer to the bill, filed three special pleas, and moved to discharge and dissolve the injunction. From a decree of the chancellor overruling the demurrer and the motion to discharge and dissolve the injunction, and sustaining exceptions to the special pleas, an appeal was prosecuted by the bank to this court. On that appeal the decree of the chancellor was in all things affirmed in an opinion handed down by Mr. Justice HARALSON. We refer to the report of the case as it appears in 133 Ala., at page 459, 32 South., at page 144, 59 L. R. A. 399, 91 Am. St. Rep. 46, for a full statement of the pleadings.

The averments of the bill with respect of the injury to the defendant is as follows: "That said encroachment upon said highway is a public nuisance, not only infringing on the rights of the commonwealth of Alabama, but, if same are completed and placed in position as now contemplated by the First National Bank, said encroachment will greatly damage your orator beyond that which is common to the public generally, by injuring and depreciating the value of your orator's property, and by destroying the symmetry of your orator's building along the highway, which is valuable, and by obstructing the light, air, and view necessarily ensuing therefrom, and by depreciating the value of your orator's property, in that the view of persons going south along said highway north of your orator's building, will be shut off from your orator's building. Your orator further avers that the tenants now in said building are valuable tenants, and your orator is desirous of keeping them as tenants, but some of them have informed the orator that if said stone columns encroach on said highway, or any part of said building of said the First National Bank encroaches on said highway, they will no longer remain tenants of your orator." Upon the return of the case to the city court much evidence was taken on both sides, and on the final hearing of the cause on the pleadings and proof the chancellor, on the 4th day of January, 1904, rendered a decree perpetually enjoining the defendant from erecting the stone columns in front of its building. From the decree the defendant has appealed.

The right to relief in the case rests primarily upon the allegation in the bill that the erection of the stone columns on the street or sidewalk would be a public nuisance. Without repeating the evidence, we think it reasonably established the fact that the columns, which were 22 inches in diameter at the bottom and tapering to 18 inches at the top, resting on bases 24 inches in diameter and extending upwards the height of the first story, would, when erected, extend beyond the building line of the street 22 to 26 inches. Commerce street is conceded to be a public highway, acquired by dedication. "Public highways belong, from side to side and end to end, to the public. There is no such thing as a rightful, private, permanent use of a public highway. If one person can permanently use the highway for his private business purposes, so may all. Once the right is granted, there can be no distinction made, no line drawn. All persons may build their shops, exhibit and sell their wares, within the boundaries of the public highway. There is no right in any person to permanently appropriate to private use any part of a public street or sidewalk. The person who so uses a public highway commits an indictable public nuisance, notwithstanding it may be so used with the permission of the municipal authorities." Costello's Case, 108 Ala. 45, 18 So. 820, 35 L. R. A. 303; Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745, 43 L. R. A. 376; First National Bank v. Tyson, 133 Ala. 459, 32 So. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; State v. Berdetta, 38 Am. Rep. 117; Callanan v. Gilman (N. Y.) 14 N.E. 264, 1 Am. St. Rep. 840; Van Witsen v. Gutman, 79 Md. 405, 29 A. 608, 24 L. R. A. 403, 406; State v. Kean, 69 N.H. 122, 45 A. 256, 48 L. R. A. 102. So it was held on the former appeal in this cause "that the erection of the proposed pillars by defendant in front of its building on the street, and which are to extend, as admitted, 22 inches beyond the west line of said building onto the sidewalk, is a public nuisance, to abate which the public might maintain a bill." First Nat. Bank v. Tyson, supra.

It is well-settled law that an individual who has sustained any particular special injury, over and above that sustained by the public generally, as the direct result of a public nuisance, may maintain a bill to enjoin it. Tyson's Case supra; Cabbell v. Williams, 127 Ala. 320, 28 So. 405; Mayor v. Rodgers, 10 Ala. 36. It may be conceded that the evidence failed to show any special injury to the complainant, except with respect to the easement of view or prospect. The chancellor in his opinion seems to have taken this view of the case. He decreed a perpetual injunction against the erection of the columns of the defendant on the ground stated in his opinion, that the complainant's right of view was interrupted. On the former appeal, as on this one, the appellant denied the complainant's right to view, except to that part of the street immediately in front of his property. This contention is bottomed upon the theory that as an abutting owner defendant held the fee to the middle of the street out from his lot. Notwithstanding the ultimate fee may be vested in the bank in its lot to the center of the street, it is subject to the public easement, and this confers on the complainant, as owner of abutting, adjacent property, the right to prevent or redress an obstruction or perversion of the street to the private uses of the defendant inconsistent with the rights of the public, where special...