Fugazzoto v. Brookwood One

• Citation: 325 So.2d 161,295 Ala. 169
• Parties: Pauline FUGAZZOTO et al. v. BROOKWOOD ONE, a limited partnership, etc., et al. SC 1223.
• Decision Date: 09 January 1976
• Court: Alabama Supreme Court

Page 161

325 So.2d 161

295 Ala. 169

Pauline FUGAZZOTO et al. v. BROOKWOOD ONE, a limited partnership, etc., et al.

SC 1223.

Supreme Court of Alabama.

Jan. 9, 1976.

John Martin Galese, Birmingham, for appellants.

Sirote, Permutt, Friend & Friedman, Birmingham, for appellees, Brookwood One and Brookwood Two.

Irvine C. Porter, Birmingham, for appellee, the City of Homewood, Ala.

Cabaniss, Johnston, Gardner, Dumas & O'Neal and J. M. Breckenridge, Birmingham, for appellee, City of Mountain Brook, Ala.

JONES, Justice.

This is an appeal from a decree of dismissal entered against Pauline Fugazzoto and others who sought injunctive relief against Brookwood One and Two (Developers) and declaratory relief against the developers and the cities of Homewood and Mountain Brook. We affirm as to the dismissal of the claim for injunctive relief and reverse and render a judgment as to the dismissal of the claim for declaratory relief.

We first address the dismissal of the claim for injunctive relief. Count One of the plaintiffs' complaint sought to enjoin the developers from constructing a private access road which would connect its property to Symer Road, a public street which abuts both the plaintiffs' residential property and the developers' commercial property. The plaintiffs based their demand for the injunction upon the allegation that the construction of the private access road would increase automobile traffic on Smyer Road thereby constituting a nuisance (Tit. 7, § 1081, Code).

After presenting affidavits, the defendants filed motions for dismissal and for summary judgment. The trial Court considered the motions and entered a decree dismissing the cause 'but without prejudice to plaintiffs to bring an appropriate action if and when the alleged anticipatory nuisance becomes real.'

The motions and affidavits authorized the trial Judge to eiter dismiss the complaint or grant a summary judgment, but he granted only the motion for dismissal. Therefore, we will limit our review to the propriety of dismissing the plaintiffs' complaint.

There is statutory authority for enjoining anticipatory private nuisances in Alabama. Tit. 7, § 1083, Code, provides:

'Where the consequences of a nuisance about to be erected or commenced will be irreparable in damages, and such consequences are not merely possible, but to a reasonable degree certain, a court of equity may interfere to arrest a nuisance before it is completed.'

In Jackson v. Downey, 252 Ala. 649, 42 So.2d 246 (1949), this Court construed Tit. 7, § 1083, Code, in the procedural context of an order sustaining a defendant's demurrer and held that 'if the facts averred present such a situation that if proven equity will intervene to grant relief, the case should proceed to a hearing on the evidence . . .'. This statement is consistent with the standard adopted by this Court for testing the sufficiency of a complaint upon a 12(b)(6) motion. In Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353, (1975), this Court quoted with approval Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), for the statement that:

'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'

Under this standard, and order dismissing a complaint under 12(b)(6) should rarely be granted. But, in this case, the plaintiffs' complaint alleged all of the facts which they could have proved in a hearing. Those facts are that the completion of the private road will increase automobile traffic on Smyer Road. The question of whether an activity which increases automobile traffic on public roads is enjoinable as a nuisance was addressed by this Court in Drennen v. Mason, 222 Ala. 652, 133 So. 689 (1931). In that case this Court stated that, 'The noises of increased automobile traffic, the stopping, starting and shifting gears, incident to the rightful use of a public street, cannot be regarded in this day as substantial cause for injunctive relief which deprives the citizen of the use of his property.'

We affirm this as a correct statement of law. Although increased traffic may be one element of a nuisance action based upon an activity such as a truck terminal or a garage, increased traffic alone cannot be regarded as a substantial invasion of a property owner's right to the enjoyment of his property. Thus, it appears beyond doubt that the plaintiffs could prove no set of facts in support of their claim which would entitle them to relief and their claim for anticipatory injunctive relief was due to be dismissed. The decree of dismissal as to Count One is affirmed.

We now turn to the plaintiffs' claim for declaratory relief. Count Two of the complaint sought a declaration that the plaintiffs are not parties to the restrictive covenant between the City of Mountain Brook and the developers and that the plaintiffs are entitled to rely upon the conditions of the covenant as residents of the City of Mountain Brook in the event they are denied injunctive relief. There are two covenants which concern the construction of the private access road. One is between the City of Homewood and the developers; the other is between the City of Mountain Brook and the developers. Although the plaintiffs' complaint sought declaratory relief as to the Mountain Brook covenant, the plaintiffs attached only the Homewood covenant to the complaint. Since the covenants are substantially identical and since our reversal of this case could be based upon either covenant, we will not attempt to determine which covenant the plaintiffs actually intended to include in their complaint. Both covenants limited the use of the private access road to 150 cars which would be issued special passes. Both covenants also included a paragraph numbered 5(c), which provides that the entire covenant 'shall, at the option of the undersigned developers . . . be null and void and of no effect in the event . . . a suit or action shall be instituted by any person . . . against the undersigned developers to enjoin . . . the use and enjoyment by the undersigned developers . . . of any private roadway . . . connecting up with the said Smyer Road.' Since the plaintiffs in this suit have brought an action against the developers as described in 5(c), they seek a declaration that the 150 car limitation remains in force despite provisions of paragraph 5(c).

The effect of paragraph 5(c) is to inhibit the...