McEachin v. City of Tuscaloosa

• Citation: 164 Ala. 263,51 So. 153
• Parties: MCEACHIN v. MAYOR, ETC., OF CITY OF TUSCALOOSA.
• Decision Date: 16 December 1909
• Court: Supreme Court of Alabama

51 So. 153

164 Ala. 263

MCEACHIN v. MAYOR, ETC., OF CITY OF TUSCALOOSA.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Tuscaloosa County; Thomas E. Knight Special Judge.

Action by Dora S. McEachin against the Mayor and Aldermen of the City of Tuscaloosa. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Dowdell C.J., and Sayre, J., dissenting.

Henry Fitts and Tyson, Wilson & Martin, for appellant.

Ormond Somerville, Robison Browne, and Thomas B. Ward, for appellees.

ANDERSON J.

Section 235 of the Constitution of 1901 (section 7, art. 14, of the Constitution of 1875) provides that "municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargement of its works, highways or improvements," etc. The language used is plain and unambiguous, and requires compensation to the owner, not only for the property taken or destroyed, but for property injured, as the result of the construction or enlargement of the works, highways, or improvements. If injury is done to another's property by a corporation or individual invested with the privilege or exercise of the right of eminent domain, whether in acquiring the property for public use or in the enlargement or improvement of the property already acquired, the owner of the adjoining injured property is given a right of action, under our Constitution, notwithstanding he had no such right under the law as it existed previous to the Constitution of 1875. And it matters not whether the fee in the works or highway is in the offending municipality or the plaintiff. The plaintiff's right of action is not dependent on an ownership of the street, or of the earth removed or trees destroyed; but if her property was injured by the destruction of the trees, by the defendant, in and about the enlargement or improvement of the street, she is entitled to just compensation, under the very letter of the Constitution. Nor does it make any difference whether the improvements made by the city did or did not exceed the existing necessities. City of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433. It is true, in the Townsend Case, reported in 80 Ala. 489, 2 So. 155, 60 Am. Rep. 112, and in 84 Ala. 478, 4 So. 780, this clause of our Constitution received a more limited or restricted construction than is now given it; but said case was qualified by the Maddox Case, supra, which we think is in line with the present holding. It is true the Maddox Case was decided by an equally divided court; but the opinion of Justice Somerville, which was concurred in by Justice McClellan, was subsequently adopted and approved by this court in the case of Avondale v. McFarland, 101 Ala. 381, 13 So. 504, and the Townsend Case was overruled.

We would make no war upon the opinion of Justice SAYRE, as concurred in by the CHIEF JUSTICE, if section 235 of the Constitution did not exist, as it is a clear enunciation of the rule under the common law; but we do think it does not properly apply the terms of the present Constitution to the facts in the case at bar, and that the distinction attempted between excavating and removing dirt from a street in front of a lot and in cutting down and removing shade trees from the sidewalk is without a difference. This court has held that an abutting owner is entitled to any injury to the value of his property, caused by the lowering of the street or sidewalk, and not due solely to the destruction or impairment of his right of ingress and egress to and from his home; for as was said by Justice Somerville in the Maddox Case, supra, in discussing the influence of our Constitution: "If the contiguous proprietor of a house and lot is injured, in the sense of being damaged, by the grading of the street, * * * and by reason of this improvement the pecuniary value of such property is diminished, the owner is entitled to be compensated for the damage he has sustained." If a house is denuded of the shade trees in front of same, and it is thereby made less comfortable, or its beauty is impaired, so as to affect its use and enjoyment, and thereby render it less valuable, we see no reason why the owner, would not be entitled to recover the damages sustained, whether his right of ingress and egress is affected or not. The question is: Was the pecuniary value of the property injured, as a result of the action of the defendant in the improvement or enlargement of its street? If it was, the plaintiff has a cause of action, and the amount of her recovery would be the difference in the value of her property before and after the improvement or enlargement of the street.

Nor do I think the authorities relied upon in the minority opinion in conflict with the holding in this case. They are inapt, as they were decided either under the common law or in states with no constitutional provision like ours. Indeed, as was said in the Maddox Case, supra: "I do not discover precisely the same language in the Constitution of any other state, except those of Alabama and Pennsylvania." Therefore decisions on the subject in jurisdictions other than Alabama and Pennsylvania are of little value in dealing with the construction of this section of our own Constitution, and, while there may have been some wabbling by the courts of these two states on this important subject, the more recent decisions of each of said states favor a liberal construction of this clause in favor of the property owner. "It is generally conceded that provisions of this character are remedial in nature, giving damages where none before were allowed, and that therefore they should be liberally construed to effect their object." Maddox Case, supra. Indeed, I think there is an expression on page 230 of 109 Ala., and page 1 of 19 South. (31 L. R. A. 193, 55 Am. St. Rep. 930), in the Francis Case, while not decisive of said case, that was intended as a warning signal against this court's falling into what I consider the error of the minority. The court there emphasized the fact that it did not mean to hold that a city would be absolved from liability for cutting trees. True, it was qualified by the rule as to necessity; but the writer evidently overlooked the fact that this made no difference under the Maddox Case.

It is needless to discuss the assignments of error in detail, as it is sufficient to say that the trial court proceeded under a misconception of the plaintiff's constitutional rights, and the judgment is reversed and the cause is remanded, in order that the issue may be tried under the rule we have attempted to lay down in this opinion.

Reversed and remanded.

SIMPSON, DENSON, and McCLELLAN. JJ., concur.

SAYRE J. (dissenting).

The damages laid in the complaint are for the depreciation caused in the value of plaintiff's property by deprivation of the shade and ornament of trees which had stood upon the margin of the sidewalk, and which were destroyed by order of the defendant municipal corporation. Apart from the damages alleged to have been caused by the removal of the trees, there is no complaint of any such damages as might have been caused by a change of grade. Non constat the result of the improvement, apart from its effect on the trees, was to leave unaffected the value and beauty of plaintiff's lot, or even increased its value and beauty. The naked question is whether the plaintiff is entitled to compensation for the loss of the shade and ornament of the trees. The trial court held that there could be no recovery.

The writer is of the opinion that there was no error in that holding; his notion being that the injury complained of was damnum absque injuria, for that trees left standing in a street after its acquirement for the public by condemnation or otherwise, or subsequently planted there, stand in the highway by the mere license of the municipality, such license being revocable at the will of the licensor. When real property is dedicated or condemned to public use as a highway, the people become entitled to every foot of it from side to side. If trees are then standing within its limits as timber, or material for timber, or wood, they remain the...