Alabama Great Southern Railroad v. Barclay

ANDERSON, J. The strictness of the rule as to the right to maintain a private action groAving out of an obstruction to highways and navigable streams has been considerably modified since the days of Lord Coke. —Joyce on Nuisances, § 121. The doctrine noAV is, in this and many other states, that a private individual, who suffers no damages different from those sustained by the public at large, has no standing in court; “but, [128] if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have same abated, if the remedy at law is inadequate.” — Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384, 41 South. 907, 8 L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285, and authorities cited; Sloss-Sheffield Co. v. McLaughlin, 173 Ala. 76, 55 South. 522; Duy v. Alabama Western Ry. Co., 175 Ala. 162, 57 South. 725. As to when special damages are shown by the obstruction of a highway to a property owner on said highway, different in kind from those sustained by the general public, is a question not free from difficulty; but this court is committed to the rule that, if the obstruction forces the owner of the land out of his direct, public street or road into a circuitous route in his commerce and intercourse with the outside world, this is a special injury to him, not suffered by the general inhabitants of the state, county, or city. — Johnson’é Case, supra. It may be true that the present bill does not set up facts showing as great an impediment to this complainant’s egress from and ingress to his property as was charged in the Johnson Case, supra, but it does aver that all direct communication is cut off from his property with the northern portion of Birmingham, as well as from the Terminal Railroad Station, except by a circuitous route through a neighborhood in bad repute, or by going a long distance eastward to about Thirty-Second street. We think the bill not only makes out a case of injury to him individually and specially, but shows that it is continuous in its character and nature, and that he cannot recover adequate compensation in a court of law. Nor is it essential for him to abut upon the obstructed portion of the street, in order to abate the nuisance. [129] It was held, in the cases of Albes v. Southern R. Co., 164 Ala. 356, 51 South. 327, and Southern R. Co. v. Ables, 153 Ala. 523, 45 South. 234, that the complainant’s lot had to he abutting that portion of the street that was vacated in order to complain of the taking of property by virtue of the said vacation, and in order to invoke section 23 of the Constitution; but each opinion holds that, as there was a legally authorized vacation of the street, the said vacation was not a nuisance. It is true that the first opinion intimated that the interference with the complainant’s hotel and saloon business would no doubt be a special injury which would enable him to abate a nuisance, but this was merely arguendo and was inapt, as a nuisance was not involved; and, while the bill was amended so as to aver an interference with the complainant’s hotel and saloon business, the court on the second appeal put the bill out of court — not upon the theory that said averments did not show a special injury, but upon the ground that whether the complainant suffered a special injury or not made no difference, as the vacation was authorized and was not a nuisance; and, in order for the complainant to invoke the protection of section 23 of the Constitution, his property had to abut on that part of the street that was vacated. To the same effect was the holding in the case of Jackson v. Birmingham Foundry & Machine Co., 154 Ala. 464, 45 South. 660, except that the rule wa¡=, extended so as to include, not only one whose property actually abutted on the vacated purtion of the street, but one whose property had been entirely cut off from the outside world by said vacation. The case at bar is not an attempt to invoke the Constitution against taking property, but proceeds upon the theory that the obstruction is a nuisance, and that the complainant is affected thereby different in kind [130] from the general public; and the equity of the bill is supported by the authorities first above cited. Nor do we think that this holding is contrary to the case of Dennis v. M. & M. R. R. Co., 137 Ala. 649, 35 South. 30, 97 Am. St. Rep. 69, as the bill in that case does not seem to have invoked the inaccessibility of complainant’s property, caused by the obstruction, but was based upon the diminution of the value of his lot, and the court held that he had a plain and adequate remedy at law. -On the other hand, if said case is susceptible of a different construction, and holds that the interference with the owner’s communication with the outside world is not a special injury, then it does not harmonize with the more recent cases on the subject. It is unquestionably the law in this state that the right of action for the cause or creation of a nuisance accrues to the owner of the land at the time of the creation of said nuisance, and does not pass to his vendee. —Huntsville v. Ewing, 116 Ala. 582, 22 South. 984; Evans v. S. & W. Ry. Co., 90 Ala. 54, 7 South. 758; Matthews’ Case, 99 Ala. 24, 10 South. 267, 14 L. R. A. 462; L. & N. R. R. Co. v. Hill, 115 Ala. 347, 22 South. 163. But this is not an action for damages caused by the creation of the nuisance, and is a proceeding merely to abate the nuisance. “The acquiescence of plaintiff’s grantor in an act of erection of defendant constituting a nuisance is no defense to plaintiff’s cause of action for an injunction against a continuance of the nuisance.” — 29 Cyc. 1232; Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11. The complainant did not have to aver that he was the owner of his lots in question at the time the street was obstructed. The bill avers that the obstruction is in a public street in Birmingham, and does not locate the said obstruction . as being on respondent’s right of way. If [131] this is not a public street, then the bill must fail for failure of proof, but it shows upon its face that said street is a public highway; and, whether we can or cannot take common knowledge of the fact that respondent’s right of way is older than the streets of Birmingham, we are relieved from having to resort to same, because'the hill places the obstruction in the street, and not upon the respondent’s right of way. There is an apparent conflict between the Johnson and McLaughlin Cases, supra, as to what constitutes a special injury, as distinguished from one suffered by the public generally; and, if said conflict is real, we prefer following the Johnson Case. The decree of the chancery court is affirmed. Affirmed. Dowdel, C. J., and Simpson, McClellan, and Somerville, JJ., concur. Mayfield and Sayre, JJ., concur in the conclusion.