Morris v. Montgomery Traction Co.

• Decision Date: 09 February 1905
• Parties: MORRIS ET AL. v. MONTGOMERY TRACTION CO.
• Court: Alabama Supreme Court

38 So. 834

143 Ala. 246

MORRIS ET AL. v. MONTGOMERY TRACTION CO.

Supreme Court of Alabama

February 9, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Bill by J. M. Morris and others against the Montgomery Traction Company. From a decree dismissing the bill for want of equity on demurrer, complainants appeal. Affirmed.

The bill sought to enjoin the appellee from constructing and operating a street railway on Mobile street. The allegations of the bill were, in substance, that said street was very narrow, being only 24 feet in width, and was one of the principal thoroughfares in the city of Montgomery, and was passed by a great number of people daily in wagons, buggies and other vehicles; that the street railway proposed to occupy 10 feet of such street, and would thus prevent the passing of vehicles thereon, which would result in the necessary abandonment of such street, to the great inconvenience and injury of complainants; that property on said street would be exposed to greater dangers from fire for the reason that fire engines and apparatus could not pass a car thereon.

Wm. L Martin, for appellants.

Graham & Steiner, for appellee.

HARALSON J.

"Streets and highways are dedicated to the use of the traveling public, and street railways, which are for the purpose of facilitating travel, impose no additional burden upon the abutting owner, and are a public use." If they create noise, dust and vibrations, and are attended with some inconvenience and even danger to life and property, so do other vehicles of travel and trade. They are legitimate uses within the original dedication of streets for the benefit of the public. Joyce on Electric Law, §§ 278, 341.

"A street surface passenger railway constructed at street grade in the usual manner and operated by animal power (or by electricity) is not per se a public or private nuisance, nor is it a new servitude imposed upon the land for which the owners of the fee are entitled to compensation." Booth on Street Railways,§ 82. Such a use by the ordinary electric railway, with the usual means by which it is operated, is but an improved method of using the street for public travel; and there is no limit to the use of a public street for the purposes of travel thereon, so long as such use does not interfere unnecessarily with the ordinary modes of travel and is not substantial impairment of private rights of property. Nellis on Street...