Romano v. Birmingham Ry., Light & Power Co.

• Decision Date: 05 June 1913
• Citation: 62 So. 677,182 Ala. 335
• Court: Alabama Supreme Court
• Parties: ROMANO et al. v. BIRMINGHAM RY., LIGHT & POWER CO.

62 So. 677

182 Ala. 335

ROMANO et al. v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

June 5, 1913

On Rehearing, June 30, 1913

Appeal from Chancery Court, Jefferson County; A. Latady, Special Chancellor.

Suit by Joe Romano and others against the Birmingham Railway, Light &amp Power Company. From a decree for defendant, plaintiffs appeal. Reversed and remanded.

James A. Mitchell and Samuel B. Stern, both of Birmingham, for appellants.

Tillman Bradley & Morrow, M.M. Baldwin, and J.A. Simpson, all of Birmingham, for appellee.

SAYRE J.

Appellants filed this bill for an injunction to abate a nuisance. The averment is that appellants own four adjacent lots at the corner of Pratt boulevard and Twentieth street in the residence section of that part of the city of Birmingham formerly known as Ensley. The lots are vacant, but are being held for sale or future use as places of residence. Within a year, and since complainants acquired their property defendant has constructed on a lot immediately across the street from appellants' property a large gas holder or reservoir in which illuminating or fuel gas is kept for distribution to its customers in the neighborhood. It is averred that "said gas reservoir or gas holder is continuously emitting fumes and gases polluting the air in that vicinity with unpleasant and unwholesome odors which are deleterious to the health and comfort of persons living and residing in that vicinity and particularly to persons who might reside on the real estate of complainants." To show their own injury, appellants aver that the sale of their property for any reasonable price has been as is now being prevented, the value thereof as a place of residence is "absolutely ruined, and its value is greatly depreciated."

From the chancellor's opinion, written in explanation of the grounds upon which his decree proceeded, it is to be observed that two concurring considerations operated to bring about his conclusion against the equity of the bill. Other objections were taken to the bill, but they have not appeared to us to contain merit, and, inasmuch as we have been unaided by a brief for appellee, we have assumed that it is willing to rest its case upon the grounds which were sustained in the court below, and shall confine the statement of our views to those points.

1. It did not appear to the chancellor that the structure in question, or defendant's use of it, constituted a menace to the future use of complainants' lots as vacant property. There has been no physical invasion of that part of the solid earth over which complainants have acquired exclusive ownership and dominion; but their ownership extends usque ad coelum, and within the limits of that ownership they are entitled to the flow of pure air. The right is incident to the ownership of land, and must be protected as well as any other valuable right. "No man has a right to interfere with the supply of pure air that flows over another's land any more than he has to interfere with the soil itself." Cavile v. Kilner, 26 L.T. (N.S.) 277; Wood on Nuisances (2d Ed.) § 544. It is not denied therefore, that any sensible pollution of the air which flows over complainants' property, to a degree in excess of such pollution as is fairly incident to the ordinary use of land in that neighborhood, would constitute an actionable injury; but the proposition of the decree is that complainants shall have no relief in equity by way of injunction, but should be remitted to their action at law for damages, because the property is vacant and complainants' comfortable enjoyment thereof has not been invaded or diminished. Of course, it does not follow that, because complainants might have an action at law, they cannot resort to equity. The remedy at law must be adequate to redress the particular injury complained of. An owner is entitled to be secured in the full beneficial use of his property and his complete dominion over it so long as his use and dominion does not invade the corresponding legal rights of his neighbors. The Code of 1907 has defined a private nuisance as one which may injure either the person or property of another. Section 5198. In adjusting rights and remedies between parties in respect of the uses to which real property may be devoted, regard must be had for the future. It is to secure the future that equity intervenes. Complainants and defendant alike, when they acquired property in a...