Greil v. Stollenwerck

• Decision Date: 14 February 1918
• Docket Number: 3 Div. 310
• Parties: GREIL et al. v. STOLLENWERCK et al.
• Court: Alabama Supreme Court

78 So. 79

201 Ala. 303

GREIL et al. v. STOLLENWERCK et al.

3 Div. 310

Supreme Court of Alabama

February 14, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill by N.J. Greil and others against Frank Stollenwerck and others to enjoin the obstruction of a way. From a degree sustaining demurrers to the bill and dismissing it, complainants appeal. Reversed, rendered, and remanded.

Steiner Crum & Weil, of Montgomery, for appellants.

Ball &amp Samford and Goodwyn & McIntyre, all of Montgomery, for appellees.

MAYFIELD J.

Appellants filed this bill against appellees, seeking to enjoin the respondents from closing or obstructing a portion of a street or alley within the corporate limits of the city of Montgomery, Ala.

Appellants, complainants below, allege that they own property abutting that portion of the street or alley which is obstructed or inclosed, or threatened to be so obstructed or inclosed. The bill therefore brings appellants within the class of citizens who may maintain a private suit to enjoin or abate a public nuisance; that is, they show an injury or detriment different in kind from that suffered by the public, in that their ingress and egress to and from the obstructed street or alley is impaired or destroyed.

The existence of a permanent obstruction in a highway is such an unlawful act as injures the owners of adjoining lots, and who have a right as an incident to the enjoyment of their property to have the street maintained in its full width, free from obstructions of a permanent character; this is a right that may be vindicated by injunction or by indictment. First National Bank of Montgomery v. Tyson, 144 Ala. 457, 39 So. 560.

The obstruction of a public highway or a public street or alley is a nuisance which a court of equity will enjoin at the suit of an individual who suffers injury, on account of such obstruction, different in degree and character from that of the public. Cochran v. Purser, 152 Ala. 354, 44 So. 579; Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Bank v. Tyson, 133 Ala. 459, 32 So. 144, 59 L.R.A. 399, 91 Am.St.Rep. 46; Id., 144 Ala. 457, 39 So. 560.

The respondents both answered and demurred to the bill. The bill and answer, considered together, show that the real, the disputed, question is whether or not the way or alley in question is a public one, or merely a private way, which appellees and their predecessors in title created, and have the right to abandon or obstruct when the use or necessity for which it was created has ceased. This question in large measure depends upon the proper construction of a contract made between the city of Montgomery and the Mobile & Montgomery Railway Company, a public service corporation, appellees' predecessor in title, more than 20 years ago. This contract is by exhibit and reference made a part of both the bill and the answer. The reporter will set out the contract in full, that the questions and the decision and opinion may be the better and more easily understood.

It will be seen that by virtue of this contract the railroad company, public service corporation, acquired the right to use certain parts and portions of certain streets in the city of Montgomery for the location of its tracks, depots, bridges, etc. Some of the uses involved the obstruction of parts of the public streets and their exclusive appropriation to the necessities of the railway. The freight depot was to be built, and was built, across one of the public streets which led directly to the railway passenger depot; and the right to use another street for its tracks and passenger sheds, so as to give it nearly, if not quite, the exclusive use of such street, was also acquired by the railway company.

In consideration of these rights acquired to use the public streets, the railway company, for itself and its successors, agreed to build freight and passenger depots of certain dimensions and fitness, between, along, and across certain streets; to construct an underpass along one of the public streets, under its tracks, to the river or wharf, and to construct a bridge across this underpass, but not to maintain the underpass or the bridge after it was constructed; to build car sheds over its tracks along another street, and, in addition, to open up and construct certain streets, ways, or alleys on its own land, and maintain the same. These streets, alleys, or ways so agreed to be constructed and maintained constituted almost, if not quite, the only means of ingress and egress the public had to its depots which the railway agreed to construct. These streets, alleys, or ways agreed to be constructed and maintained, and which were so constructed, and were so maintained for a long time, are in the contract denominated "private streets." Nothing specific, however, is said in the contract, as to the right of the railway company, or of its successors in title, to change or abandon the streets at pleasure, or upon the happening of stated contingencies. If the bill had merely alleged in terms that the obstructed street, way, or alley in question was a public street or highway, it would unquestionably have contained equity, and would not have been subject to demurrer on the ground now under consideration. The averment, however, was more specific, and referred to the contract in question, being in part as follows:

"Complainants further show that the said street, so constructed by the said Mobile & Montgomery Railway Company, pursuant to the fourth paragraph of said contract contained in the said ordinance attached hereto as Exhibit A, did become, upon the construction thereof as provided in said contract, a public thoroughfare for the use of the public generally in the city of Montgomery, and that the making of said contract by the city council of Montgomery was an acceptance by the said city of Montgomery of said street, when so constructed, as a public thoroughfare or street, etc."

The fourth paragraph of the contract above referred to reads as follows:

"Fourth. Said Mobile & Montgomery Railway, for itself, its successors and assigns, also agrees to construct and maintain at its own expense on its own property a private street not less than thirty-five (35) feet in width, leading from a thirty (30) foot alley in the rear of the Windsor Hotel along the front of said freight station to Moulton street, as shown by plat hereto attached, marked Exhibit A."

The fifth paragraph of this contract reads as follows:

"Fifth. The Mobile & Montgomery Railway Company, for itself, its successors and assigns, also agrees to maintain a private street not less than thirty-five (35) feet in width on its own property, leading from Commerce street along the front of said passenger station as shown by plat hereto attached, marked Exhibit A, and to build and maintain a fence inclosing the passenger tracks leading into said union passenger station, said inclosure commencing on a line with the west side of Coosa street, and extending in a southwesterly direction to the intersection of Whitman street, as shown by plat hereto attached, marked Exhibit A, and to arrange the freight tracks so that the same shall not be laid between the car shed herein provided for, and the Alabama river outside of said improvements shall be bona fide commenced within three months after the passage of this ordinance and be pushed to a completion as rapidly as practicable."

The contract, of course, must be construed as a whole, and not merely by considering one or more paragraphs or sentences alone. This is necessary to arrive at the true meaning intended to be recorded by the parties to the contract. A part of this contract, that authorizing the railway to permanently obstruct Lee street by building the freight depot across it, was held void because it was beyond the power of the city to so authorize the obstruction of its streets; but the contract was, subsequent to its making, ratified and confirmed by an act of the Legislature, and, as so ratified and confirmed, was upheld as valid by this court, on appeal, at the suit of the Attorney General against the Louisville & Nashville Railroad Company (158 Ala. 218, 48 So. 391). It was there decided that the contract in question was so far ratified and confirmed by the Legislature as to authorize the obstruction of Lee street by the building of a freight depot across it. As a part of this same contract the railway company, for itself and its successors in title, agreed to open certain streets, including the one in question, and to maintain the same. These streets so agreed to be opened and maintained were necessary, if not the sole, approaches to the freight and passenger stations agreed to be erected and maintained. It is true that these streets are in the contract denominated "private streets." Did this make them private ways, to be abandoned or closed at the will of one of the parties to the contract?

This contract must be construed in the light of its history, a part of which has become matter of record, both judicial and legislative, in this state. The contract and its history show that the railway company, a public service corporation, and the municipal corporation, which, of course, was acting for and on behalf of the local public, were desirous of erecting and maintaining adequate...