Winter v. Cain

• Decision Date: 15 April 1966
• Docket Number: 3 Div. 72
• Citation: 187 So.2d 237,279 Ala. 481
• Parties: Blanche L. WINTER v. John L. CAIN et al.
• Court: Alabama Supreme Court

Page 237

187 So.2d 237

279 Ala. 481

Blanche L. WINTER v. John L. CAIN et al.

3 Div. 72.

Supreme Court of Alabama.

April 15, 1966.

Rehearing Denied June 16, 1966.

L. Lister Hill and Godbold, Hobbs & Copeland, Montgomery, for appellant.

Clyde P. McLendon, Montgomery, for appellees.

COLEMAN, Justice.

Complainant appeals from a decree whereby by the court sustained the demurrers of respondents to the bill of complaint, dismissed the suit, and taxed all costs against complainant.

On July 11, 1962, complainant filed her bill of complaint. She alleged that she owns and is in possession of a certain parcel of land in the City of Montgomery and that respondents own a parcel of land in the City of Montgomery which 'is situate immediately to the east of and is immediately adjacent and contiguous to the' lot of complainant. The allegation, as we understand it, means that complainant and respondents own adjoining lots. Complainant further alleges:

'4. That on, to wit, the 1st day of June, 1960, Respondents built or erected and have since maintained a concrete block wall several feet high on their said lot adjoining Complainant's said lot, which said wall contained and contains no openings at grade or other provision to permit flow and drainage of surface water and which said wall has prevented and prevents the natural flow and free drainage of water in times of rainfall from Complainant's said property, and has prevented and prevents the water, in times of rainfall, from flowing from Complainant's said lot, and caused it to accumulate overflow, flood, and stand in stagnant pools and offensive wet places on Complainant's said property.

'5. That prior to the erection of said wall natural drainage and flow of surface water from Complainant's said lot in times of rainfall was over and along the aforesaid lot of Respondents.

'6. That as a proximate consequence and result of the Respondents' erecting and maintaining the said wall, the Complainant's said lot was greatly damaged and her land was rendered of greatly less value.

'7. That, heretofore, on, to-wit, the 22nd day of July, 1952, the City of Montgomery, Alabama, did adopt a certain zoning ordinance, designated as Chapter 22, Article II, Section 30 of the Code of said City, and that on, to-wit, the 24th day of November, 1959, said City did adopt an amendment to said Ordinance, by which said Ordinance as so amended it is provided that any type wall or fence must provide adequate openings at grade to permit the flow of surface drainage whether easements are provided or not.

'8. That, heretofore, on, to-wit, the 22nd day of July, 1952, the City of Montgomery, Alabama adopted a certain Ordinance, designated as Chapter 13, Article I, Section 7 of the Code of said City, whereby it is provided that it shall be unlawful for any person in the city to allow any obstruction on premises owned or occupied by him, or over which he has control, whereby free drainage is prevented, and pools or ponds of stagnant water or offensive wet places are created.

'9. That the aforesaid actions of the Respondents herein in erecting and maintaining said wall in the manner aforesaid are violative of said Ordinances of the City of Montgomery.

'10. That on numerous and divers occasions Complainant has called the attention of Respondents to the aforesaid situation and to the aforesaid damage to Complainant's said lot, and called upon Respondents to modify said wall or to make other provision for the free drainage of such surface water from Complainant's said lot, which Respondents have failed or refused to do.

'11. That by reason of the aforesaid illegal actions by Respondents the Complainant has been and will continue to be irreparably damaged; Complainant has no adequate remedy at law.'

Complainant amended paragraph 7 of the bill by striking the words, 'the 24th day of November, 1959,' and, in lieu thereof, substituting the words 'the 8th day of November, 1955.'

Complainant prays for a mandatory injunction requiring respondents 'to abate or correct such violation of the aforesaid ordinances of the City of Montgomery, and to remove said wall so as to permit the natural drainage of surface water from Complainant's said lot; that this Honorable Court award Complainant the sum of $2,500.00 as damages for the wrongful acts and conduct of Respondents or award Complainant such damages as the Court deems just and proper which Complainant has suffered from the wrongful and illegal conduct and acts of Respondents; and Complainant prays for such other, further, and different relief as unto your Honor may seem just and proper; . . ..'

In briefs, the parties refer to certain facts not alleged in the bill. We do not understand that we can, on this appeal, look to facts not alleged in the bill.

Each respondent filed a separate demurrer on the grounds, among others, that no cause of action is stated in the bill and that the ordinances of the city relied on by complainant are invalid and unconstitutional because the ordinances are inconsistent with the laws and Constitution of this state.

The court expressed the opinion that the ordinances are in conflict with 'the laws' and 'the general laws' of this state, sustained the demurrers, and dismissed the suit.

Complainant insists that the constitutional and statutory provisions, which forbid a city from passing ordinances inconsistent with the laws or general laws of this state, forbid the enactment only of ordinances which are inconsistent with statutes enacted by the legislature and do not forbid the enactment of ordinances which are inconsistent with the decisions of this court. Stated another way, complainant argues that the laws or general laws with which municipal ordinances must not be inconsistent include only legislative enactments and do not include rules established by judicial decisions such as the pertinent rule here which has been stated as follows:

'The result of our decisions is that the lower proprietor in an incorporated town or city can build a wall or other obstruction on his property extending to the line between it and higher property and thereby prevent water from passing from the higher property over his property, although that is the only way in which the surface water can pass. This is so simply because the area happens to be incorporated in a town or city. Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 45 So.2d 792; Drummond v. Franck, 252 Ala. 474, 41 So.2d 268; Shanan v. Brown, 179 Ala. 425, 60 So. 891, 43 L.R.A.,N.S., 792; Hall v. Rising, 141 Ala. 431, 37 So. 586.' Burson v. Saliba, 270 Ala. 212, 214, 116 So.2d 609.

In short, complainant says the decisions of this court are neither the law nor the general laws of this state within the meaning of § 455, Title 37, Code 1940, or § 89, Constitution of 1901.

Complainant says, further, however, that even if the rule of Burson be a general law under § 89 of the Constitution, the city ordinances here relied on by complainant are not inconsistent with the Burson rule as the word, inconsistent, is used in § 89 of the Constitution.

Respondents say that "the law" and "the general law" of Alabama applicable in this case is the law as stated in Burson v. Saliba, supra; that the two city ordinances relied on by complainant are in conflict with the law and the general law of the state and are unconstitutional and invalid insofar as application of the ordinances to this case is concerned; and, therefore, that the court was correct in sustaining the demurrers to the bill of complaint and dismissing it.

It is clear that without the ordinances in question, complainant would have no right to complain of the conduct charged to respondents and the bill of complaint would be without equity. If, as respondents contend, the ordinances are invalid, the bill of complaint is without equity and the court did not err in sustaining the grounds of demurrer which point out that deficiency in the bill.

We do not think that the decision in this case should rest merely on determination of the question whether the prohibition imposed on the legislature by § 89 of Constitution of 1901 applies only to a rule declared by statute and not to a rule of the common law as declared by decisions of this court. This we think because § 89 is itself merely reiteration of a common law rule and an application of that rule to the legislature.

§ 89 of Constitution of 1901, with the word legislature substituted for General Assembly, is otherwise virtually identical with § 50 of Article IV of the Constitution of 1875. In a case involving the application of the 1875 provision to legislation providing for the establishing of stock law districts, this court said:

'The section of the constitution under consideration declares, as we have seen, that 'the General Assembly shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the State.' Const.1875, Art. IV, § 50. The phrase Municipal corporation, as here used, in our opinion, was intended to have reference to municipal corporations in their more limited and proper sense, or to incorporated villages, towns and cities. It must be interpreted in reference to the mischief intended to be remedied, which was, very clearly, legislation by towns and cities in the form of by-laws and ordinances enacted under special charters, and not to the quasi-legislative functions commonly conferred on courts of county commissioners, and boards of revenue of counties, which are rarely conferred except by laws of a general character. While the general rule obtains, that the power to make laws is vested in the General Assembly by the constitution, and this power can not ordinarily be delegated to any other tribunal; yet it is nowhere denied, that it is competent for the General Assembly to delegate to municipal corporations the power to enact by-laws and ordinances, which, in many particulars, may have all the force and validity of a...