McGowin v. City of Mobile

• Decision Date: 09 October 1941
• Docket Number: 1 Div. 107.
• Parties: McGOWIN et al. v. CITY OF MOBILE et al.
• Court: Alabama Supreme Court

4 So.2d 161

241 Ala. 576

McGOWIN et al. v. CITY OF MOBILE et al.

1 Div. 107.

Supreme Court of Alabama

October 9, 1941

Armbrecht Inge, Twitty & Jackson, of Mobile, for appellants.

Smith & Johnston, of Mobile, amici curiæ.

Harry Seale, of Mobile, for appellees.

LIVINGSTON Justice.

The bill of complaint in this cause is rested on the theory that the property of complainants is being taken, injured or destroyed by the proposed improvement of Government Street in the city of Mobile, Alabama, a street abutting complainants' property, without compensation being first paid therefor, in violation of section 235 of the Constitution of Alabama.

Although the lower court denied the injunctive relief prayed for, it has the power to so mold its decree as to award damages in lieu of such relief if the exigencies of the case demand. Mobile County v. Barnes-Creary Supply Co., 225 Ala. 127, 142 So. 72, and cases cited.

Admittedly the principal question here involved is complainants' right to compensation for the taking, injury to or destruction of their property. The pertinent provisions of section 235, supra, are as follows: "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, which compensation shall be paid before such taking, injury, or destruction."

The bill as amended, the sufficiency of which is questioned by the demurrers of appellees, alleges in substance that N Floyd McGowin, Earl M. McGowin and Nicholas S. McGowin, as trustees under the will of J. Greeley McGowin, own a lot or parcel of land in the business section of the city of Mobile, which may be described as the property located at the southeast corner of the intersection of Government Street and St. Emanuel Street, on which now stands a three-story brick building or business house used by the Alabama Hardware Company (tenants of the owners) as a retail hardware establishment: that the lot and building front 73 feet, more or less, on Government Street, with a depth of approximately 60 feet along the eastern boundary line of St. Emanuel Street. And, further, that the improvement in Government Street, which is made the basis of complainants' claim for damages, is the construction of Bankhead tunnel under Mobile River, with its eastern terminus or entrance on Blakely Island and its western terminus or entrance in the center of Government Street at a point approximately in line with the eastern boundary line of St. Emanuel Street, and the western boundary line of complainants' property. It is further averred that the city proposed to excavate the center of Government Street immediately in front of complainants' property, the excavation to run from the eastern boundary of St. Emanuel Street (in an easterly direction) through the entire block on which complainants' property is situated. The excavation to be about 30 feet wide and of increasing depth from the level of the eastern boundary line of St. Emanuel Street to the mouth of the tunnel, and will be made for the purpose of making a permanent change in the center 30 feet of Government Street; and there will be contructed in the center of Government Street a downward approach into the tunnel. The portion of the excavation to be constructed directly in front of complainants' property is to remain uncovered, but there is to be constructed a concrete wall on either side of the excavation, such wall to be approximately 4 feet in heighth above the present level of Government Street, and running the entire length of the block on which complainants' property is situated, on which walls at specified intervals will be placed light poles and lights. That a toll or fee will be charged for the use of the tunnel by the public. That Government Street is, and has been for a long period of time, approximately 70 feet in width from curb to curb in front of complainants' property, and has been for a long period of time unobstructed. That the construction of the tunnel, as aforesaid, will leave on both sides of the tunnel an unobstructed street or passage way approximately 20 feet in width. It is further alleged as follows: "Your complainants further aver that without the construction of said tunnel the said complainants' property is and will be worth in excess of $40,000, but that if said tunnel is constructed, as herein set out, said property will be diminished in value by approximately the sum of...