Kirk v. McTyeire

• Decision Date: 08 February 1923
• Docket Number: 6 Div. 822.
• Citation: Kirk v. McTyeire, 209 Ala. 125, 95 So. 361 (Ala. 1923)
• Parties: KIRK v. MCTYEIRE, MAYOR, ET AL.
• Court: Alabama Supreme Court

95 So. 361

209 Ala. 125

KIRK v. MCTYEIRE, MAYOR, ET AL.

6 Div. 822.

Supreme Court of Alabama

February 8, 1923

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Horace E. Kirk against R. P. McTyeire, as Mayor of the City of Bessemer, and others.From an order denying temporary injunction, complainant appeals.Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Bumgardner & Wilson, of Bessemer, for appellees.

McCLELLAN J.

This appeal is from a decretal order denying, upon hearing complainant-appellant's application for temporary injunction to restrain, pendente lite, the city authorities of Bessemer from proceeding with their design to have constructed, on a lot provided by the city an incinerator for the destruction of garbage, débris, the carcasses of animals etc., accumulating in the city, and to forbid the removal of such matter to the place of contemplated incineration through or over a street of the city on which appellant, with many other citizens, maintains his family residence.

The system of hearing and appeal on applications for temporary injunctions is provided by Code, §§ 4528,4529,4531.This system has been considered and treated in McHan v McMurry,173 Ala. 182, 55 So. 793;Lynne v. Ralph,201 Ala. 535, 78 So. 889.Where the bill praying injunction pendente lite possesses equity, the issue to be determined on the hearing is mainly one of fact.Authoritiessupra.

The carcass of an animal is not per se a nuisance, and is not necessarily dangerous to the public health.2 Dillon's Municipal Corp.(5th Ed.) § 679;29 Cyc. p. 1169;28 Cyc. p. 720.

A suitably located and properly operated plant for burning garbage is not a nuisance.29 Cyc. p. 1174.The authoritative assumption by the municipality of the exclusive function of collecting in wagons and carrying, in properly inclosed receptacles, through the city's streets to a common point, the garbage, refuse, or débris accumulating in the city, is the exercise of the police power, and is hence not the creation of a public or private nuisance of which property owners on thoroughfares so used to transport such matter can successfully complain.2 Dillon(5th Ed.) § 678;28 Cyc. pp. 715, 717, 719.

The conclusions of fact attained by the court below from a consideration of the averments of the bill and the affidavits submitted by the respective parties to the cause were justified by the evidence thus...