Town of New Decatur v. Scharfenberg

• Decision Date: 04 April 1906
• Citation: 41 So. 1025,147 Ala. 367
• Parties: TOWN OF NEW DECATUR v. SCHARFENBERG.
• Court: Alabama Supreme Court

41 So. 1025

147 Ala. 367

TOWN OF NEW DECATUR v. SCHARFENBERG.

Supreme Court of Alabama

April 4, 1906

On Rehearing, June 30, 1906.

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

"Not to be officially reported."

Suit by William Scharfenberg against the town of New Decatur. From a decree in favor of complainant, defendant appeals. Affirmed in part, in part reversed, and remanded.

Brown &amp Kyle, for appellant.

E. W Godbey, for appellee.

WEAKLEY C.J.

The bill was filed to enjoin the town of New Decatur from damaging complainant's store property by certain proposed changes in the grades of the contiguous streets, upon the allegation that the municipality had not first paid complainant for the injury that would result, and to require the town to restore the streets to their former condition. Upon the filing of the bill, a preliminary injunction was issued. The defendant filed a motion to dismiss for want of equity, a motion to dissolve the injunction, a demurrer, several pleas, and a sworn answer. The chancellor overruled the motion to dismiss and the demurrer, and held the special pleas insufficient. He also overruled the motion to dissolve the injunction unconditionally; but, in response to a prayer to that effect in the answer, ordered a reference to the register to ascertain the probable damages, and, on the coming in of the report, the payment of the ascertained sum into court, and the execution of a bond to pay such damage as the complainant might sustain, the chancellor dissolved the injunction. C. & W. R. R. Co. v. Witherow, 82 Ala. 190, 3 So. 23.

Whatever may be the law elsewhere, it is too well settled in this state for further controversy "that, under constitutional guaranties, a municipal corporation may not take or injure the property of a citizen in the exercise of its power to improve its highways without first making compensation; and the right to injunctive relief in such a case as this exists without reference to the solvency or insolvency of the municipality and regardless of the consideration that he might recover full compensatory damages in an action at law." City Council of Montgomery v. Lemle, 121 Ala. 609, 25 So. 919; Avondale v. McFarland, 101 Ala. 381, 13 So. 504; Niehaus v. Cooke, 134 Ala. 223, 32 So. 728. We have, therefore, no doubt of the equity of the bill, unless its equity is destroyed by the allegations it contains respecting the petition by defendant and other citizens to the city council, wherein they requested the paving of Second avenue in front of complainant's property, and preparatory to which the change of grade and other work complained of had been ordered. We are not of opinion that the petition merely to pave the avenue would be a waiver of damages growing out of the change in the grade of the highway, as set forth in the bill; such waiver of a constitutional right ought not to be lightly inferred, and cannot be clearly derived from the request to pave the avenue and the agreement to bear a part of the expenses of the paving. Newville Road Case, 8 Watts (Pa.) 172; Barker v. City of Taunton, 119 Mass. 392; Birdseye v. City of Clyde (Ohio) 55 N.E. 169; Jones v. Borough of Bangor, 144 Pa. 638, 23 A. 252. As said by the Supreme Court of Massachusetts in Barker v. City of Taunton, 119 Mass. 392, "it is no bar to the claim for damages made by the petitioner that he was one of the original petitioners for the improvement--that alone is not evidence of an assent that his property shall be taken for public use without compensation." While the court uses the words "taken for public use," the facts of the case show that it was similar to the one before us, and that damages were claimed for injury to plaintiff's premises by lowering the grade in the construction of a sidewalk. There, also, the plaintiff had merely petitioned for the construction of the sidewalk. The complainant would also have the right, upon the averments of his bill, no compensation having been first made for the injury, to require the city to restore the street to its former condition, as well as to enjoin further acts of damages. A court of equity does not administer partial justice, but, taking jurisdiction in a proper case, ever seeks to conclude the whole controversy. The motion to dismiss the bill for want of equity was properly overruled. What we have said above also applies to and covers the questions presented by the demurrer, and in overruling this no error was committed.

The answer did not deny the averments upon which the equity of the bill rested, and new matter, not responsive to the bill, cannot be considered on motion to dissolve. The defendant was not entitled to an unconditional dissolution. Niehaus v. Cooke, 134 Ala. 223, 32 So. 728. The chancellor followed the practice approved by this court, and requested by the defendant, in dissolving the injunction upon the making of a cash deposit and the execution of the bond, thus allowing a public work to proceed, and the town has no cause of complaint against the ruling upon its motion to dissolve the injunction.

This leaves for consideration pleas 4, 5, and 6, assignments of error specifying these as having been erroneously held insufficient.

Pleas 4 and 5 present substantially the same question and may be considered together. A careful reading of the bill shows that the gravamen of the complaint is that the city is preparing to change the grade of the highway in front of complainant's property, without his consent and against his objection. So far as the work has proceeded, it has been done in pursuance of the plan to alter the grade, preparatory to laying the brick pavement on the elevated line; and the incidental consequences, alleged in the bill, showing the modum of the injury, are all attributable to the execution of the purpose by the city to establish a new grade for the highway. The question, therefore, is whether under the averments of pleas 4 and 5 the complainant was entitled to restrain the proposed work, or, upon the hearing, if these pleas should be proven, ought to have a decree for compensation. By section 427 of the Code of 1896 an appeal lies to this court from a decree by the chancellor overruling a plea to a bill, or what is the same thing, holding it to be insufficient; in this way, the judgment of this court may be obtained upon the sufficiency of a defense in an equity case interposed by plea, in advance of the taking of evidence, or a hearing upon the merits. Glasser v. Meryrovitz, 119 Ala. 152, 24 So. 514. Several separate pleas may be filed or they may be incorporated in the answer, in which latter event they must be treated as independent pleas. The setting down of a plea for hearing upon its sufficiency operates as an admission of the truth of all the facts alleged for the purpose of invoking the judgment of the court upon the legal question whether these facts constitute a defense to the bill. Tyson v. Land Co., 121 Ala. 414, 26 So. 507; Glasser v. Meyrovitz, 119 Ala. 152, ...