Whaley v. Wilson

HARALSON, J. In Hool & Paullin v. The Attorney-General, 22 Ala. 194, this court said :■ “Any obstruction of a public road or highway, which renders its passage less commodious, is a nuisance, and whatever doubts may have formerly existed as to the powers of a court of chancery to entertain a bill to enjoin and abate a public nuisance, the jurisdiction of that court for this purpose, at the present day, is well established.” See also, to the same effect, the City of Demopolis v. Webb, 87 Ala. 666. In the last case cited, we sustained such a jurisdiction as based, among others, on the reason, that the remedy at law, which a private person had to redress his grievances for such a nuisance, was inadequate, on the ground that one action, or even several, may not be sufficient to adjust such wrongs by reason of the continuous nature of the injury; and that an appeal to the chancery court is a more orderly method of settling such disputes, being less apt to lead to breaches of the peace, [631] than to attempt to repair one’s rights by taking the law into his own hands. This is in keeping with the doctrine as stated by Mr. Pomeroy, based upon a long array of authorities cited, that a public nuisance will be restrained at the suit of a private person who suffers therefrom a special and particular injury, distinct from that suffered by him in common with the public at large, if the injury is real, and such that the legal remedy of damages would not be adequate. — 3 Pom. Eq. Jur., § 1349 ; Elliotton Roads & Streets, 496, 497 and 500, notes ; Crommelin v. Coxe, 30 Ala. 328. A plainer case could scarcely be presented than the one made by this bill, for the interposition of a court of equity to abate the nuisance complained of. The road as is alleged, is a public highway; the obstruction is complete and continues unless abated; it has caused, as alleged, deterioration in the value of complainant’s lands to the extent of $500, distinct from that suffered in common with the public at large; if allowed to remain it will continue to damage him ; and, from what is averred, it is manifest an action, or successive actions, at law will be inadequate to compensate complainant for the real damage the nuisance has done, and may'continue to do him sepecially, without reference to any one else. What, more could be demanded of a complainant in a bill to abate a public nuisance than is here presented? Having assumed jurisdiction to grant relief in such a case, the court of equity will retain the bill and proceed to do complete justice between the parties, without remitting them to a court of law for an adjustment of damages, to which complainant may be entitled growing out of the creation and maintenance of the nuisance. This may be done on the evidence by the chancellor himself, or by reference «to the register to report, or.else it may be submitted to the determination of a jury. — Farris v. Dudley, 78 Ala. 124; Stow v. Bozeman 29 Ala. 397 ; Kilgore v. Kilgore, 103 Ala. 620. In a case of the kind, we apprehend, however, that for any distinct and completed damage occurring more than a year before the commencement of the suit, the complainant would be barred a recovery under section 2619 of the Code of 1886, subdiv. 6. See authorities cited under that section. The rule is, as laid down by Wood, that where a wrongful act amounting to a nuisance, which of itself creates a com [632] píete and permanent injury, the statute of- limitations will run from the completion of the thing creating the nuisance ; but where the nuisance is permanent and. the injury from it is continuous and increasing, successive actions for damages will lie, and the plaintiff can recover all damages not barred by the statute, accruing up to the commencement of the suit. — Wood on Nuisances, § 865; 2 Greenl. Ev., § 474; 13 Am. & Eng. Encyc. of Law, 723. Under the allegations of the bill the first obstructions complained of were placed in and across the road in November, 1894. What injury they did or could do to complainant, could be anticipated and calculated at the time of their erection as well as subsequently, and may be said, therefore, to have been original, and complainant’s remedy was full and complete at the time of said obstructions. For such damages the remedy of complainant is barred ; the suit having been commenced more than á year after their accrual. No distinct damages are laid and claimed for the obstruction of December, 1895. Each ground of demurrer went to the whole bill. To abate the nuisance complained of, the bill is clearly maintainable. Reversed and remanded.