Shell Oil Co. v. Edwards, 6 Div. 620

• Decision Date: 16 June 1955
• Docket Number: 6 Div. 620
• Citation: 263 Ala. 4,81 So.2d 535
• Parties: SHELL OIL COMPANY et al. v. A. D. EDWARDS et al. (and cross appeal).
• Court: Alabama Supreme Court

Page 535

81 So.2d 535

263 Ala. 4

SHELL OIL COMPANY et al. v. A. D. EDWARDS et al. (and cross appeal).

6 Div. 620.

Supreme Court of Alabama.

June 16, 1955.

White, Bradley, Arant, All & Rose, Douglas Arant and Alex S. Lacy, Birmingham, for appellants.

Wm. Soroka, Ingram Beasley, Birmingham, and E. C. Yokley, Nashville, Tenn., for appellees.

Chas. H. Brown, Birmingham, for cross-appellee City of Birmingham.

PER CURIAM.

The main appeal in this case is by the respondents, to whom we will sometimes refer as Jackson and associates, from a final decree in equity wherein they were 'enjoined from locating a filling station in Block 5, Crestwood Addition Woodlawn Highlands, First Sector, except on the southwest corner fronting one hundred and fifty (150) feet on Crestwood Boulevard and extending south one hundred and twenty-five (125) feet'. Complainants have cross appealed and are A. D. Edwards and wife, who purchased a house and lot immediately east of said Block 5 in November 1952, together with twelve intervenors who likewise have purchased homes in the subdivision.

The facts developed by the pleading and evidence, briefly stated, are: Jackson and associates acquired in 1943 a large tract (205 acres) of undeveloped woodland south of the Woodlawn section of the City of Birmingham. They intended to convert this property into a very high class residential district when an appropriate time arose. In 1946 a subdivision map was completed for them by an engineer retained for that purpose. This map was filed for record in the probate office on June 18, 1946. It contained a diagram of residence lots, streets, etc., usual in such matters. The State had acquired a right of way for a four lane super-highway with dividing parkway, which extended through the southern portion of the area thus surveyed and designated. The map indicated the location of the highway which is sometimes referred to as Crestwood Boulevard. The area surveyed was designated 'Crestwood Addition to the Survey of Woodlawn Highlands'. The super-highway has been constructed and is the location of highway or road No. 78 extending from Birmingham to Atlanta. In a general way it extends from the west eastwardly and separates the lots as divided by the survey. The area was wholly undeveloped. Block No. 5, here considered, adjoins the highway on the north according to the map, and is west of 56th Street, which connects traffic from First Avenue, North, at Woodlawn with the highway. Block No. 5 was therefore in the northwest corner of the intersection of 56th Street, South, and the super-highway. The subdivision plan and map showed the northern portion of Block No. 5 to be divided so as to contain three residential lots. The remainder of the block was labeled on the map 'Reserved for Crestwood Business Section'. That area, as marked, was about two acres of 436 feet wide as it abutted the super-highway, and 317 feet wide south of the residence lots 1, 2 and 3, and extended north from the super-highway 429 feet.

The subdivision plan was approved by the City Commission of Birmingham on June 18, 1946, when Jackson and associates began clearing the property and constructing streets. On July 1, 1946, Jackson wrote to the Zoning Board of Adjustment requesting that Block No. 5, with the exception of lots 1, 2 and 3, be zoned 'commercial'. The city in its comprehensive zoning plan had originally zoned all this property for residences as was its custom in respect to such territory in its raw undeveloped status. The zoning board issued a certificate on July 30, 1946 showing that Block No. 5, with the exception of lots 1, 2 and 3, was zoned 'commercial', and so recommended to the city commission in 1947. But the city commission took no action in that respect until September 19, 1950, when the zoning board again brought it to their attention. On that day the city commission passed ordinance No. 797-F, which classified as 'commercial' Block No. 5, with the exception of lots 1, 2 and 3. No question was raised as to the procedural requirements in adopting the ordinance (section 15 of the amended bill), except that it was not authorized by law, in that, it does not alter or rearrange the boundary of any zone or district. Title 37, chapter 16, Code, and that the city did not give any recognition to the restrictions and limitations in exercising the power conferred by Title 37, section 779. See, Title 62, section 715.

Before that ordinance was adopted, and on June 10, 1947, Jackson and associates filed in the probate office certain restrictions which were declared to apply to the Crestwood subdivision, except such portion as was 'Reserved for Crestwood Business Section', which was expressly omitted. Jackson and associates prepared and distributed a large amount of advertising matter with a map of the subdivision showing that Block 5, with the exception of lots 1, 2 and 3, was 'Reserved for Crestwood Business Section'. As stated above, the complainants are A. D. Edwards and wife who purchased an attractive house and lot across 56th Street, immediately east of Block 5, in November 1952. There were twelve intervenors who had purchased homes in the subdivision. Most of those homes were purchased by the present owners after Block 5 had been rezoned by the city commission. There is evidence that Jackson and his associates did not emphasize their purpose to carry out the plans for the business area, but at times indicated that there would be a long delay in that respect. Mr. Byrum, chairman of the board of adjustment of the city, testified in response to complainants' counsel:

'And I will say from February 1948 until the first day that you probably ever walked in my office, I have had numerous, numerous inquiries regarding the zoning of Crestwood; and it was pointed out that that area was set up, and I cannot say how many--I would estimate 150 or 200 in the period from 1948 until the time I even talked to you--yours is the first adverse question or remark that I have ever heard during the course of you might say five years or four and one-half years. The general public has known that that spot was set aside in Crestwood. We have dozens of people every day that come into our office to examine our maps and satisfy themselves as to what the existing zoning classifications are.'

On January 14, 1953 Jackson leased to Shell Oil Company (a respondent) a portion of Block 5 in the southeast corner, 150 feet on Highway No. 78 and 125 feet along 56th Street. On February 24, 1953 the city commission adopted a resolution permitting Shell Oil Company to erect a drive-in filling station on that lot. This was approved by the chief building inspector, chief of the fire department, the city engineer and the traffic officer of the police department of the City of Birmingham. On the same day the city building inspector issued a permit for the construction of the service station, and on May 14, 1953 the fire department issued a permit for the installation of the tanks for said station.

On March 10, 1953, Mr. William Soroka, who appears as attorney for complainants, wrote Mr. Jackson that 'the original plan drawn by Mr. Van Keuren for a most modern and elaborate shopping center is acceptable by the property owners of Crestwood'. (Mr. Van Keuren is an architect and had made a preliminary drawing for a shopping center in Block 5.) That letter also contained the following: 'Anything less, or short of that, is not acceptable. It was represented by your agents that the cost of such a shopping center would be $200,000 to $250,000, and that is in keeping with our demands. We purchased our property and our homes with the understanding that the shopping center would be the finest, in keeping with the homes in Crestwood'. The drawing showed an automobile service station on the corner of 56th Street and Crestwood Boulevard. Jackson claims that he could not get the shopping center developed as contemplated. The Korean War had something to do with it at first. But that he (Jackson) always intended that Block 5 should be a shopping center with a filling station on this corner. This is about ten blocks from First Avenue, North, at Woodlawn where there is a shopping center. There are also some small stores and service stations on Fifth Avenue, South. There was not shown to be any pressing need for a filling station in Block 5. Jackson in a letter to Soroka advised him that any development 'will be handled in such way as not to hurt any of our good friends in Crestwood'. About three hundred very expensive and highly restricted residences have been built in the subdivision, some before and some after the rezoning.

Most of the witnesses who testified thought that a service station at this point was not needed and would depreciate the value of the residences. An effort was made to compensate Jackson in the sum of $10,000 if he would convert that area into residential property and to guarantee a maximum price for the lots. On April 1, 1953, Mr. Soroka and other property owners petitioned the zoning board to amend the zoning layout so as to change Block 5 (except lots 1, 2 and 3) from commercial to residential. The board had a public hearing and numerous residents were represented and testified. The zoning board adopted a resolution recommending that the city commission consider unfavorably the petition to amend. The city commission had a hearing on April 7, 1953 and denied the petition. On that day the instant bill of complaint was filed.

The evidence was conflicting as to the probable effect of the proposed filling station on the property in the subdivision. We assume the trial court reached the conclusion that it would be harmful and work 'hurt, inconvenience, or damage' to property owners in Crestwood, or some of them here complaining, section 1081, Title 7, Code, and that it would be a nuisance on the southeast corner of Block 5, but not on the southwest corner of that block, about three hundred feet away,...