Hanna v. Harman, 3 Div. 130

• Decision Date: 06 June 1935
• Docket Number: 3 Div. 130
• Citation: 230 Ala. 620,162 So. 109
• Parties: HANNA et al. v. HARMAN.
• Court: Alabama Supreme Court

162 So. 109

230 Ala. 620

HANNA et al. v. HARMAN.

3 Div. 130

Supreme Court of Alabama

June 6, 1935

Rehearing Denied June 27, 1935

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill to abate a nuisance by Annie F. Harman against Robert G. Hanna and another. From a decree overruling a demurrer to the bill respondents appeal.

Affirmed.

Warren S. Reese, Jr., and S.H. Dent, both of Montgomery, for appellants.

Thos B. Hill, Jr., and Wm. Inge Hill, both of Montgomery, for appellee.

THOMAS Justice.

The amended bill was for injunction and to abate a nuisance, was demurred to, and demurrers held not well taken and overruled.

The bill is illustrated by a plat or map of the properties of the parties.

The original bill was by several complainants, and was amended by striking all of the original parties complainant, except Mrs Harman.

The demurrer was amended by adding the following grounds:

"7. Said bill as thus amended either undertakes to abate a public nuisance and is filed by an individual instead of the State of Alabama, or is a radical departure from the original bill which sought to abate a public nuisance in that as now framed it seeks to abate a nuisance, whether public or private, from which damages result to the complainant peculiar to her and different in kind from that suffered by the public generally.

"8. Said bill as thus amended either makes an entirely new party complainant, substitutes a new cause of complaint, or is a radical departure from the bill as originally framed."

These present the issues for decision.

It is established in this jurisdiction that equity may abate a public nuisance, and that a private person can maintain a bill for abatement of such nuisance when it is shown that such party has suffered a special injury therefrom, which is real and distinct from that suffered by him in common with the public at large, and is so continuous in nature that the legal remedy for damages would be inadequate. Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Jordan v. McLeod, 220 Ala. 672, 127 So. 160; City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; State v. Ellis, 201 Ala. 295, 296, 78 So. 71, L.R.A.1918D, 816; Russell et al. v. Holderness, 216 Ala. 95, 112 So. 309; McIntosh et al. v. Moody et al., 228 Ala. 165, 153 So. 182; Hundley v. Harrison et al., 123 Ala. 292, 26 So. 294; 29 C.J. 627, § 383.

The amended bill did not make an entire change of parties, or introduce a new cause of action, or so vary the averred facts on which there would be an essential change in the character of relief prayed and to which complainant is entitled; that is, the amendment was not repugnant to, nor inconsistent with, the object of the original bill, and was within the rule that obtains as to amendments. Section 9513, Code; Moseley v. Ritter et al., 226 Ala. 673, 148 So. 139; Ex parte Delpey, 188 Ala. 449, 66 So. 22; Pitts v. Powledge, 56 Ala. 147; Alabama Terminal & Improvement Co. v. Hall & Farley, Trustees et al., 152 Ala. 262, 44 So. 592.

The case of Marshall v. Olds, 86 Ala. 296, 5 So. 506, is radically...