46 So. 468 | Ala. | 1908
The bill in this case is filed in the name of the state, on the relation of the Attorney General The purpose of the bill is to abate a public nuisance, namely, an obstruction of a certain public street in the city of Birmingham. The case was heard below on a motion to dismiss the bill for want of equity, upon the theory that the state is not the proper party to file a hill for the abatement of a public nuisance, where such nuisance is in a public street in a city, but that such duty devolves upon the municipal authorities. The court below overruled the motion to dismiss the bill, and from the decree overruling the motion this appeal is prosecuted.
The jurisdiction of a court of chancery to abate a nuisance is not denied by the respondent, appellant here; but it is conceded.- It is contended, however, that the city alone has the right to maintain a bill to abate a public nuisance in its streets, and cases from other jurisdictions are cited in support of this contention. Whatever may be the decisions of courts of other jurisdictions, this court, we think, is committed to a different doctrine. A public street in a city is a public highway, and its uses belong to the public generally, and it cannot be said that such uses are limited to the municipality or to its citizenship alone. Nor is the authority and power of the municipality over its streets as to the abatement of nuisances exclusive. This was expressly
It is contended, however, that in the case of Hoole & Paulin v. Attorney General, supra, the question as' to who was thé proper party to maintain the bill was not decided.. The question, nevertheless, was argued in brief of counsel, and the court held that the bill had equity, though the case was decided on its merits on the facts. The question here is on the equity of the bill, its averments being confessed. In this respect, we think the case of Hoole & Paulin v. Attorney General, supra, is undoubted in point as an authority. There might be a case in which the municipality authorized the nuisance complained of, and in such a case it is hardly to be supposed that the municipal authorities would take action to abate the nuisance, and, if the doctrine contended for by appellant be upheld, the wrong to the general public would be without redress. There are a number of our cases that might be cited persuasive of the view we have expressed, but we are contented to rely upon the cose of Hoole & Paulin, supra, and the general doctrine of equity jurisdiction in cases of public nuisance and the right of the state to. take action for the suppression of the same.
The decree appealed from will be affirmed.
Affirmed.
