51 So. 327 | Ala. | 1909
The bill in this case was filed by the •appellant against the mayor and council of the city of Decatur and the Southern Railway Company, and prays “that respondents be enjoined from vacating Vine •street where it crosses the right of way of the Southern
From the plat which is made “Exhibit K” to the bill, it will be seen that the hotel property of the complainant fronts on an open space (part of lot 257), which is bounded on the east by the right of way of the Southern Bailway. That part of lot 258 owned by him is bounded on the east by said right of way. La Fayette street bounds said property in the north, with his lot 79 on the opposite side of said street, and Vine street bounds complainant’s property on the south. The parts of the streets which are vacated by the city council are described as “that part of Vine street between Bailroad and Sycamore streets * * * now covered by the right of way of the Southern Bailway Company,” also “La Fayette street over the Southern Bailway Company’s right of way.” It will be seen that no part of the streets immediately opposite the complainant’s property is vacated or closed, but the corners of complainant’s property touch the corners of the parts of the streets vacated. It will be noticed, also, that, according to the agreement and the action of the city council, that part which is vacated was already in the possession of the Southern Bailway Company as its “right of way.”
When this case was before this court at a previous term, the opinion of the court, opens with this statement: “Conceding that the abutting owner of the street has such a private interest therein as would entitle him to compensation under section 235 of the Constitution of 1901 before a vacation thereof by the municipality, the complainant does not bring himself within the protection of said section, as the bill does not aver that he-is an abutting owner on those particular parts of the streets that were vacated.” While the word “abut” is not used in the bill, as it was originally, yet the description therein shows the exact location as it is shown in this bill, to wit, that the property of complainant corners where the vacated portion of the street corners on the railway right of way, and to which point the street is vacated, but no part of the street in front of the complainant’s lot is vacated.
While all the authorities agree that the legislative department has the right' to vacate or abolish highways and streets, yet they have not generally followed the logical conclusion of the Supreme Court of Pennsylvania, but many of them have adopted the principle that the abutting owner has peculiar rights in the street, some of them placing it upon the ground that he owns
In another case where the party owned lots which cornered just opposite the end of the vacated street it was held by the same court that he could not be considered as having property abutting on the street. — Beutel v. West Bay City Sugar Co., 132 Mich. 587, 94 N. W. 202. In the case of Stanwood v. City of Malden, supra, the court said: “The petitioner further contends that he brings himself within the principles of Smith v. Bos
We think it is plain that even according to the authorities which allow compensation, whether by. statute or otherwise, property situated as that of the complainant is not abutting on the part of the street which is vacated. Such property would not be liable for an assessment against abutting owners for an improvement of that part of the street, and, while the injury to it might be greater than the property further away on the same street, yet it is only greater in degree. The access to the lot from the street is the same as it was before, and it would be hard to formulate any reason why the injury is different in its nature from that to property adjoining it, and not cornering on the vacated part of the street.
It is next insisted that the act in question is void because in the contract by which the city agreed to vacate the street there was also an agreement that the railroad company should occupy it for its depot building and shed. It may be said that, the city having the right to vacate the street when it was vacated, the property was then vested in the abutting owners, subject to whatever rights the railroad company had by holding it as its right of way, and the question as to placing additional servitudes on it would be between the railroad company and the abutting owners, .also that the fact that the city had in view the occupation of the land by the railroad company for a depot and shed did not render it any less a vacation of the street. The record shows that the city, as it had a right to do, had been insisting in the
It results that there was no error in the decree of the court sustaining the demurrers.
The decree of the court is affirmed.
Affirmed.