Thetford v. Town of Cloverdale

• Decision Date: 22 December 1927
• Docket Number: 3 Div. 824
• Citation: 115 So. 165,217 Ala. 241
• Parties: THETFORD v. TOWN OF CLOVERDALE et al.
• Court: Alabama Supreme Court

115 So. 165

217 Ala. 241

THETFORD v. TOWN OF CLOVERDALE et al.

3 Div. 824

Supreme Court of Alabama

December 22, 1927

Rehearing Denied Jan. 28, 1928

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by Margaret D. Thetford against the Town of Cloverdale and others, to vacate and annul a part of a street, with supplemental bill for temporary injunction restraining the municipal authorities from proceeding to build the street. From a decree dissolving the temporary injunction complainant appeals. Affirmed.

William F. Thetford, Jr., of Montgomery, for appellant.

Eugene Ballard, Rushton, Crenshaw & Rushton and Steiner, Crum &amp Weil, all of Montgomery, for appellees.

SAYRE J.

By her bill in this cause, appellant sought a decree vacating and annulling a part of a street known as Cottage place, and shown by the original map of the town of Cloverdale. Since the filing of the bill and since the appeal in this cause the town has been by act of the Legislature incorporated into the city of Montgomery, which has been substituted as party defendant. Other defendants, appellees, are the owners of the lots attingent upon the street. Appellant would vacate 128.8 feet of the street which lies between her lot and the opposite lot of Annie M. Dimmick Jones, who interposes no objection. Other individual appellees own all the other lots attingent upon the street, which is a short one, running from Ridge avenue on the southeast to Park avenue on the northwest and, roughly speaking, parallel with Cloverdale road approximately 500 feet away. Pending the original bill, appellant filed a supplemental bill averring that the town authorities were about to open the street for passage, involving the destruction of trees, shrubs, and flowers thereon, and procured an interlocutory injunction. That injunction was subsequently dissolved, and from that decree this appeal is prosecuted.

In order to support an injunction for the purpose of preserving the status quo of property rights, where a substantial question is to be decided between the parties, there are, according to the authorities, two points as to which the court must satisfy itself:

"First, it must satisfy itself, not that the plaintiff has certainly a right, but that he has a fair question to raise as to the existence of such a right. The other is whether interim interference, on a balance of convenience or inconvenience to the one party and to the other, is or is not expedient." Coxe v. Huntsville Gaslight Co., 129 Ala. 501, 29 So. 867, 869, where cases are cited.

Following the plan of procedure thus indicated, we come to consider the equity of appellant's original bill. The bill, in our judgment, is wholly lacking in equity, and, such being the case, there is no balance of convenience or inconvenience to be considered.

Appellant plants her case on section 10365 of the Code. There is no occasion to deny that the section may be operative in any circumstances. It may, for example, be invoked in the circumstances indicated by section 10360 of the Code, notwithstanding the acknowledgment and recording of the map or plat as declared by the next preceding section (section 10359) to be the equivalent of a conveyance in fee simple to such parts of the platted premises as are indicated on the plat as intended for street or other public use, or possibly in other conditions; but we are clear to the conclusion that, in the conditions shown by the original bill and exhibits in this case, the section in question (section 10365) can have no operation whatever and that appellant has no rights to be preserved by an injunction ad interim.

Appellant shows no presently available right in the area known as Cottage place. That street has been dedicated to the use of the public as a highway by its former owner, and, whether the public right thus acquired be that of an owner in fee simple (Code, § 10364) or that of an owner of an easement ( Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A. [ N.S.] 607), Highland Realty Co. v. Avondale Land Co.,

174 Ala. 326, 56 So. 716; Smith v....