South & North Alabama R. Co. v. Schaufler

• Decision Date: 07 November 1914
• Docket Number: 741
• Parties: SOUTH & NORTH ALABAMA R. CO. v. SCHAUFLER.
• Court: Alabama Supreme Court

66 So. 502

189 Ala. 58

SOUTH & NORTH ALABAMA R. CO. v. SCHAUFLER.

No. 741

Supreme Court of Alabama

November 7, 1914

Appeal from Chancery Court, Cullman County; W.H. Simpson Chancellor.

Bill by Veronika Schaufler against the South & North Alabama Railroad Company. From a decree for plaintiff, defendant appeals. Affirmed.

George H. Parker, of Cullman, Eyster & Eyster, of New Decatur, and Steiner, Crum & Weil, of Montgomery, for appellant.

F.E St. John, of Cullman, for appellee.

MAYFIELD J.

This is a bill by an individual to abate a public nuisance, and incidentally to have a decree for damages in consequence thereof. The nuisance alleged is the obstruction of a public street, by changing the grade of the railroad track where it crosses the street. Plaintiff lives upon and owns property abutting the street obstructed, but not abutting the obstructed portion. It is alleged that the obstruction causes plaintiff to take a more circuitous route to and from portions of the city of Cullman, and that she suffers damages in consequence thereof. There was demurrer to the bill, for want of equity, in that no injury was shown different in kind from that suffered by the public. The demurrer was overruled and respondent appeals.

The equity and sufficiency of bills for this purpose have been frequently before this court. The judges have been very much divided in opinion on the subject, and for that reason the questions have been thoroughly considered by the full court on several occasions. The writer has on several occasions dissented from the majority opinion in cases like the one under consideration and in actions at law to recover damages for public nuisances; but the majority of the court have repeatedly held that bills like the present could be maintained, and that circuity of route, caused by the obstruction of a public highway, is an injury or inconvenience sufficient to give equity to a bill by an individual to abate a public nuisance such as the obstruction of a public highway. He feels that no good can be accomplished by further dissent, and he therefore yields to the views of the majority.

Under the decision and opinion in the case of Alabama Great Southern Railroad Co. v. Barclay, 178 Ala. 124, 59 So. 169, and those in other recent cases, the decree of the chancellor must be affirmed.

It is argued by appellant that the bill does not allege that the obstruction was unauthorized or unlawful....