Sloss-Sheffield Steel & Iron Co. v. Johnson

• Decision Date: 06 July 1906
• Citation: 147 Ala. 384,41 So. 907
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. JOHNSON.
• Court: Alabama Supreme Court

41 So. 907

147 Ala. 384

SLOSS-SHEFFIELD STEEL & IRON CO. v. JOHNSON.

Supreme Court of Alabama

July 6, 1906

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

"To be officially reported."

Suit by C. Atwell Johnson against the Sloss-Sheffield Steel & Iron Company. From a decree in favor of complainant, defendant appeals. Affirmed.

Tillman Grub, and Bradley & Morrow, for appellant.

Cabaniss & Weakley, for appellee.

TYSON J.

This is the case of a bill filed by the appellee to abate a public and private nuisance arising from obstructing streets in the city of Birmingham by dumping therein slag from a furnace. The appellant demurred to the bill, and, the demurrer being overruled, this appeal is prosecuted to reverse the decree of the lower court.

The complainant is the owner of a block of city property, which it seems, is east of the alleged obstructions placed in the streets by the appellant; and the allegation making out the public nuisance is that the streets are, and long have been, dedicated to public uses as highways, and that the appellant by dumping slag therein totally obstructs the use thereof. The allegation, to give the appellee a standing in court to have this public nuisance abated, is that he is the owner of the property, an entire square, in the vicinity, and that the obstructed highways are streets leading from his property to the city of Birmingham and are the direct way for travel, and that by the obstructions he is deprived of the use of this direct route and is compelled to take a circuitous one into other streets to the north or south of the obstructions. It is conceded that the facts alleged make out a public nuisance, and the only point at issue is whether they show such a peculiar injury to the complainant below as to give him a standing in court.

The general rule is that a private individual, who suffers no damage different from that sustained by the public at large, has no standing in court for the abatement of a public nuisance; but, if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have the same abated if the remedy at law is inadequate. Rosser v. Randolph, 7 Port. 238, 31 Am. Dec. 712; Columbus v. Witherow, 82 Ala. 190, 3 So. 23; Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.) 91, 9 L.Ed. 1012; 3 Notes U.S. Rep. 710; State of Penn. v. Wheeling B. Co., 13 How. (U. S.) 518-564, 14 L.Ed. 249; In re Debs, 158 U.S. 587 et seq., 15 S.Ct. 900, 39 L.Ed. 1092; Jones v. Bright (Ala.) 37 So. 79. This position is not denied, but it is insisted that no special damage is shown in this case to the complainant below, and that if such damage is shown the remedy at law is adequate in a suit for damages. As to special damages, the rule is that the injury, to be special, must be one different in kind, and not mere degree, from that suffered by the general public from the act complained of. Bigley v. Nunan, 53 Cal. 403; Crowley v. Davis, 63 Cal. 461; Decker v. E. S. & N. R. Co., 133 Ind. 493, 33 N.E. 349; Gundlach v. Hamm, 62 Minn. 42, 64 N.W. 50; High on Injunctions, § 589.

The situation shown by the bill is that the nuisance is the obstruction of the two streets bounding the complainant's block of land on the north and south, and extending directly into the city of Birmingham; the obstruction being two blocks distant in a westerly direction from complainant's property, and compelling all travel between his property and the city to take a circuitous route north or south of the two obstructed streets into other streets leading into the city instead of pursuing the direct course along Second and Third avenues, which are the obstructed streets. So the question is whether forcing the owner of land out of his direct public street or road into a circuitous route in his commerce and intercourse with the outside world is a peculiar or special injury to him, not suffered by the general inhabitants of the state, county, or city. Spencer v. London & Birmingham Co., 8 Sim. 198. The statement of the proposition seems to give the affirmative answer to the inquiry. If the direct and usual route of travel may be obstructed, there could certainly be no reason why the indirect routes might not also be closed one by one, until the lawful and criminal invasion of public roads put the unfortunate owner's property in a cul-de-sac, compelling a day's time instead of a few moments of time, in going to business, church, or market. An individual might be entirely inclosed, and the value of his property destroyed, without affecting the public. The injury is thus clearly individual and special. In the case of State of Penn. v. Wheeling Bridge Co., 13 How. (U. S.) 518, 14 L.Ed. 249, the state of Pennsylvania entirely as an individual filed its bill to abate the obstruction by a bridge of a public waterway in the state of Virginia which interfered with the general commerce and travel feeding its connecting railroads and canals; and after elaborate consideration relief was granted on the ground that the bridge, though a public, was also a...