Walls v. C.D. Smith & Co.

• Decision Date: 07 April 1910
• Citation: 52 So. 320,167 Ala. 138
• Parties: WALLS ET AL. v. C. D. SMITH & CO. ET AL.
• Court: Alabama Supreme Court

52 So. 320

167 Ala. 138

WALLS ET AL. v. C. D. SMITH & CO. ET AL.

Supreme Court of Alabama

April 7, 1910

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by O. C. Walls and others against C. D. Smith & Co. and others for damages. Judgment for defendants, and plaintiffs appeal. Affirmed.

The counts as finally amended are as follows:

"(1) Plaintiffs claim of defendants the sum of $5,000 damages and allege: That on, to wit, May, 1907, the defendants, in the construction of a roadbed or railway line through Reeder's Gap into the city of Bessemer, Jefferson county, Alabama, and across the public road known as the Eastern Valley public road, graded, filled, and excavated said railway across said road, which said Eastern Valley public road was a highway. The construction of said railway continued from, to wit, May, 1907, for the entire period up to and including the date of the institution of this suit to wit, December, 1907. That during said time plaintiffs occupied and had in operation a merchandise business in a store or building situated at the intersection of said Eastern Valley road and Fairfax avenue of the city of Bessemer. That they had sundry customers living along from said store down said Eastern Valley road south of said store for a radius of some distance. That their homes were situated in Jonesboro, and that they used and traveled to and from said store said Eastern Valley road, which was a public road, and that they used and traveled said road to deliver their merchandise and drinks to customers and to their homes, and that customers used and traveled said road to purchase of plaintiffs their goods at said store up to and until, to wit, May, 1907, at which time they aver defendants constructed across Eastern Valley public road an archway immediately across or over said road, and made and excavated in said Eastern Valley road deep and dangerous depressions, and filled in on each side of said archway with dirt, stones, timbers, and other materials, until it completely obstructed said Eastern Valley road. That during the construction of said road it became filled in with trees, logs, large stones, and other substances at or near the intersection of said Eastern Valley road with Fairfax avenue, and that they maintained said obstacles as aforesaid, in said Eastern Valley road, and across same from the period of, to wit, May, 1907, and the remaining part of said year, up to and including the date of filing this suit as aforesaid. Plaintiffs aver that, owing to and as a proximate consequence of obstructing said Eastern Valley road, they were greatly inconvenienced in their travels from their said store to their homes at Jonesboro, that they were deprived of ingress and egress to and from their store, and to deliver their goods and merchandise to their customers; that they incurred expense for wagons, teams, and employés to haul and deliver their goods at a different and very inconvenient route, and owing to said inconvenience from the obstacles in the said Eastern Valley road, placed there by the defendants aforesaid, they were deprived of getting a number of customers and lost trade, and their said business was greatly damaged, to their damage as aforesaid."

The second count states the facts substantially as stated in the first count, with the additional allegation that by the obstruction of said public highway defendants wantonly, willfully, or intentionally damaged the plaintiffs, and their damages are alleged as in the first count.

Pinkney Scott, for appellants.

Tillman, Bradley & Morrow and E. H. Dryer, for appellees.

SAYRE J.

The text-books and adjudicated cases are agreed that for an obstruction of a public and common right of way no private action will lie, unless it be alleged and shown that the plaintiff has thereby suffered injury peculiar to himself; that is, different in kind and degree from that suffered by the public. The reason for this rule, accepted from the beginning as sufficient, is that the offender should be punished by indictment as for the maintenance of a common nuisance, or the nuisance be abated by bill in equity in the name of the state; for otherwise suits would be multiplied intolerably. Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123, note; Wood on Nuis. § 646; Joyce on Nuis. § 218 et seq., where many cases are cited. See, also, Baker v. Selma Street Ry. Co., 135 Ala. 552, 33 So. 685, 93 Am. St. Rep. 42, and First Nat. Bank v. Tyson, 133 Ala. 459,

32 So. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46. The reported cases show that the courts have been much vexed in the application of this general principle to particular cases. This much, however, seems clear: That if one's access from his property to the highway be so materially impaired as to affect its value, or if, while attempting to use the highway, one sustains direct injury to his person or property, an action will lie. And here we note the absence from the complaint in this case of any averment of injury of either kind. But where the obstruction is so remote from plaintiff's property as not to affect its permanent or rental value--and in this case there is no allegation that the value of plaintiff's property was impaired--so that the plaintiff is merely driven to a circuitous route or a longer road, the authorities hold...