59 So. 467 | Ala. | 1912
— -The trial court sustained defendant’s demurrers to counts 4 and 5 of the complaint, and this action is assigned as error.
The gravamen of the fourth count is that defendant, through its agents or servants, was engaged in planting poles along Twenty-Sixth street and Sixth Avenue North, in Birmingham, and while so doing said agents or servants negligently planted a pole in the sidewalk in front of her window, and within five feet thereof, in an upright position through her shed, and, as a proximate consequence, materially injured her property. It is averred, also, “that the said servants or agents of the defendant negligently climbed upon her said shed or building, sawed off several feet of the main beam that supported the shed causing the said shed to sway and tear loóse from the building which it was made part of, and sawed off several feet of said shed.'’ It is not alleged that these latter acts of defendant’s agents were done by them in the course of their employment in and about the planting of poles for defendant, nor that such acts have any relation whatever to such sendee. The demurrer to the count,, as first filed, pointed out this defect, and Avas properly sustained. By amendment this part of the count Avas eliminated, and, as thus amended, defendant’s demurrers Avere again sustained thereto.
It is evident from the language used that plaintiff’s shed, which was thus damaged (and no other damage is alleged), was built over the sidewalk, Avhich Avas part of a public street, and thus constituted prima facie an unlawful encroachment on a municipal highway. — City of Mobile v. L. & N. R. R. Co., 124 Ala. 132, 23 South. 902.
In charging that the defendant’s agents negligently planted the pole in question, the count must, on demur
We do not controvert the principle of law insisted on by appellant, viz., that the right of a private citizen to abate a public nuisance is no greater than the necessities of his case demand; and, specifically, that he must do no unnecessary injury to the property of another, although it obstructs the public highway, so as to be a public nuisance. In other words, he may remove or injure or destroy such property only in so. far as that action may be reasonably necessary to the enjoyment of his own rights in the premises. — Cooley on Torts (2d Ed.) p. 51; Wood on Nuisances (3d Ed) p. 943.
We are dealing, however, with a question of pleading, and the counts in question make no such case. The allegation that defendant “negligently planted a pole” on the sidewalk through plaintiff’s shed, and thereby damaged plaintiff’s property, cannot, on demurrer, be treated as the equivalent of a charge that unnecessary injury was done to plaintiff’s property in the course of its partial removal or displacement. Under the conditions shown by these counts, it devolved on plaintiff to allege that planting the pole, as alleged, was not authorized, or was not necessary to defendant’s lawful uses; or else that in so planting it unnecessary injury was done to her property. This was not defensive matter; for no presumption of these results arises from the
Count 5 is a duplicate of count 4, with the addition of averments designed to show wantonness and aggravation. It is equally defective, and the trial court did not err in sustaining the demurrers to each of the counts. Had these counts showed that the plaintiff’s shed was erected and maintained by municipal license, and was not an obstruction to the free use of the street, or that the defendant’s poles were erected without municipal authority, a different question would be presented, and one which we are not now deciding.
It is to be noted, also, that no question is presented as to imposing an additional servitude on the street, nor as to interference with the plaintiff’s convenient enjoyment of her property.
Other defects are pointed out by the several grounds of demurrer ; but it is not necessary to notice them. The judgment is affirmed.
Affirmed.