135 Ala. 552 | Ala. | 1902
It is not averred in the bill, or denied. that the defendant company was regularly and legally incorporated.
The demurrer to the bill as amended questions the ■complainants’ right to maintain it, on the ground that
The bill avers that part of Union street between Dallas and Selma streets is occupied solely for residences and dwellings; that that part of Union street is extremely narrow, to-wit, sixty feet; that the dwelling and residence of complainant, Joseph M. Baker, is near to the west side of said Union street, between said points, being about six feet from said street; that said house as it now stands, has stood for many years, to-wit, twenty years; that the stable of complainant, Mary Baker Parrish, is near said street, and her residence is, to-wit, about fifty feet from said street, and as it now stands, has stood for many years, to-wit, for twenty years; that the sidewalks on each side of said.street take up about 12 feet; that said company is proceeding* to erect poles near the edge of the sidewalks, from which wires, to operate the road, are to be strung, which “will materially obstruct said street as a highway for wagons, carriages, drays and other vehicles for which purpose it has been and is now used by the public, and thereby constitute a public nuisance in said street;” that the noise, dust and vibration caused by the running of the cars over and upon said street and the danger of injury and damage to property of complainant’s, in ingress and egress to and from their stables, out-houses and dwellings by the same, will render said property undesirable for residence or dwelling property, and will greatly diminish the value of the same in, to-wit, the sum of $5,000.” These seem to be conclusions of the pleader. Such objections have all been made the subject of judicial investigation and decision. Mr. Booth, in his' work on Street Railways, section 82, states the doctrine that .“A street surface passenger railway constructed at street grade in the usual manner and operated by animal power is not per so a. public or a private nuisance, nor is it a new* servitude imposed upon the
The bill shows that the company had the consent and authority of the. municipality of the city to construct its line and operate its cars on Union street; and if it be conceded that the charter of the company did not designate that portion of said street between Selma and Dallas streets, upon which they propose to lay their track, erect poles and operate their line of road, the complainants suffered no injury of which they can complain.
If such alleged obstructions as complainants set up to enjoin the construction and operation of this road are held to be sufficient to that end, it would be difficult for any such line to be built and operated in any city or town.
To entitle the complainants to an injunction against.
If complainants suffer damage caused by improper construction or negligent, or unskillful operation of the road, they have their remedy, and defendant would be liable in damages. — Booth on Street Railways, § 97. The bill is obviously without equity, and we have been unable to discover wherein the court erred in sustaining the demurrer to it.
Affirmed.