First Nat. Bank of Montgomery v. Tyson

• Decision Date: 20 May 1902
• Citation: 133 Ala. 459,32 So. 144
• Parties: FIRST NAT. BANK OF MONTGOMERY v. TYSON.
• Court: Alabama Supreme Court

32 So. 144

133 Ala. 459

FIRST NAT. BANK OF MONTGOMERY v. TYSON.

Supreme Court of Alabama

May 20, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Injunction by A. P. Tyson against the First National Bank of Montgomery to restrain the erection of a building with pillars in the street. From a decree overruling a demurrer to the bill and a motion to dissolve, the defendant appeals. Affirmed.

The bill in this case was filed on July 20, 1901, by the appellee, A. P. Tyson, against the First National Bank of Montgomery. The bill averred in substance as follows Complainant was a resident citizen, property owner, and taxpayer in the city of Montgomery. The defendant bank was organized under the laws of the United States and located in said city. Commerce street in said city was dedicated to and accepted by the public more than 50 years ago, and was used by the public for street purposes; that it was laid out of uniform width for its entire length between the building lines, and built up on both sides with business houses, all of which, with two exceptions, extending to the building line only or receding therefrom. Complainant owns a three-story brick building on the east side of the street, known as No 12 Commerce street, used as a bank and office building, and extending up to the building line of the street, but not encroaching thereon. The defendant bank owned a lot on the same side of the street, known as No. 14 Commerce street immediately adjoining complainant's lot and building upon which the bank was constructing a six-story brick and stone building. The bank intended to place in front of its building four stone columns as ornaments, to extend from the sidewalk, 16 feet in height, and 2 feet, more or less, beyond the established building line into the street; that the bases for these columns had already been laid and the columns cut that complainant had protested against said encroachment on the highway, but, notwithstanding, the said bank intended to place said columns in front of its building. Upon advice of counsel, complainant averred that the said encroachment upon the highway is a public nuisance, and if completed and placed in position as contemplated "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 rental 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 cut off from your orator's building." It was further averred that complainant's valuable tenants would leave the building, and had threatened to leave, if the columns encroached on the highway.

In the prayer of the bill the complainant asked "that a preliminary injunction may issue from your honor's court, directed to the said the First National Bank of Montgomery, Alabama, its officers, agents or servants, architects and contractors in charge of said building of the said First National Bank, enjoining and restraining it, its officers, agents and servants, architects and contractors in charge of said building as aforesaid, from placing said stone columns on said highway, as aforesaid; and from placing any encroachment whatsoever on said highway which is intended to be permanent, and upon a hearing thereof, your orator prays that said injunction may be made perpetual, and that said the First National Bank be perpetually enjoined from placing any stone columns, blocks, steps, or any encroachment intended to be permanent upon said highway, in front of its said building as aforesaid, and that it may be ordered to remove any encroachment which it has already caused to be placed on said highway of a permanent nature in front of its said building as aforesaid."

On August 2, 1901, the judge of the city court awarded a temporary injunction. On August 8th, in the further argument of the cause, the judge vacated the order granting the temporary injunction. Thereupon, on the same day, upon petition addressed to the chief justice of the supreme court, a temporary restraining order was granted, upon the consideration of the application of the complainant for a temporary injunction, and on August 10th the chief justice of the supreme court granted a temporary injunction.

The respondent filed a sworn answer, in which he set up three pleas. The answer and the pleas were amended after the issuance by the chief justice of the temporary injunction. It is unncessary to set out at length the averments of the answer. The pleas as amended were as follows: Answering the bill, and by way of first plea, defendant averred on information and belief that if the line between the street and abutting property owners is as contended by complainant in his bill, then complainant's building itself extends into and encroaches upon Commerce street, and if defendant's columns would encroach into the street and constitute a public nuisance, then complainant's building also encroaches on the street and constitutes a public nuisance, and complainant is in pari delicto with defendant, and the special injury alleged in the bill to complainant's light, air and view will be done to the part of his building which itself constitutes a public nuisance; but defendant denies that its building will obstruct the light, air or view from the building of complainant, and denies that complainant is entitled to have light, air and view to his building across lands in which the defendant owns the fee, and over which the complainant and the public generally have only an easement of passage.

Further answering, and by way of second plea, defendant says that before beginning the construction of its building, it called upon the proper authorities of the city of Montgomery to point out and establish the true line between its property and the street, and it was its bona fide intention to conduct itself in a lawful manner in reference to the position and construction of its building, and with that view called upon the city authorities to point out the line; that the city failed and refused to point out the line, and thereupon, out of abundance of caution, it applied to the city for, and the city granted, permission to it to project the base of its building 26 inches beyond the property line and to set up on such base four stone columns to project 22 inches beyond said property line; that the sidewalk in front of the buildings of complainant and defendant is wide and spacious and the placing of the columns in front of defendant's building would not in any manner interfere with or injure the rights of the public to ready and convenient passage along the sidewalk; that to this time, defendant had only erected in front of its building now in course of construction, a foundation flush and level with the sidewalk upon which the bases for the columns are to stand, which bases will extend 1 foot 10 inches above the level of the sidewalk, and 26 inches from the front of the main building in the course of construction; that the columns are to be 16 feet high sitting on such bases, and each of them at the bottom will extend only 22 inches beyond the present front wall of the building and taper to the top, which will only be 18 1/2 inches from the line of the front wall; that the column nearest complainant's building will be 1 foot 10 inches from the north wall thereof, and not nearer; that the city of Montgomery now has and for years has had authority generally to control and regulate the streets of the city for any and all purposes, and to alter, widen, cut down, extend or otherwise alter or improve all streets or sidewalks; and upon advice of counsel defendant says that, even if the columns extend into the street, the city had authority to grant defendant permission to extend them as above described to be intended by this defendant; upon information and belief defendant says that in every city in Alabama, including Montgomery, for years past, and long prior to the enactment of the present charter of Montgomery, and many of its previous charters, the power of municipal corporations to grant permission to abutters on streets to place permanent ornaments in front of their buildings, encroaching into the public highway, has been exercised under such authority by municipalities, as the city of Montgomery has to control its streets as above recited; that this was well known and a matter of public notoriety and history at the time of the enactment of the present charter of Montgomery, as well as when its previous charters were enacted, and said city had frequently exercised the power granting like and more extensive permissions than the permission above described, and under such permissions many buildings have been constructed and are now standing in the city of Montgomery, including the two on Commerce street next south of complainant's building, whose ornaments attached to their fronts encroach into the highway, if defendant's columns would encroach into Commerce street; wherefore, upon the advice of counsel, defendant says it was the intention of the legislature, and it had the power to confer upon the city of Montgomery, and did confer upon it, the power to grant such permission as has been granted to defendant, and whether defendant was acting under said permission or under its rights as the owner of the land upon which the columns are to be constructed depends upon where the line of the property of this defendant and Commerce street is; that defendant owns the fee to the center of Commerce street in front of its building, subject alone to...