61 So. 354 | Ala. | 1913
The following statement of the record, which is practically appellee’s statement of the case made by his bill, presents the following questions for decision on this appeal: (1) Can a person whose property abuts on a public street in a city, which street is 34 feet wide, is much used for general travel, has
The prime purpose of streets is use for travel by the public. The right of the public to the use of the street is paramount to that of an abutting owner, or to that of any individual or corporation, no matter what may be the use to which he desires to devote a part of the street. Any unauthorized permanent obstruction of the streets, which prevents the exercise of this use by the public, is a nuisance, Avhich a court of equity, in a prop-, er suit, will abate. There are, however, some temporary obstructions and partial occupations of the streets, by individuals or corporations, which are allowed on the ground of necessity, such as materials for building or for repairing placed thereon by abutters in such manner as to cause the least inconvenience to the public. Moreover, individuals are permitted to use a part of the street, a reasonable length of time, for the receiving and delivering of goods at their residences or business houses abutting on the streets. These private uses, hoAvever, must not be inconsistent with the reasonably free passage of travel; but necessity justifies slight
The rule is well stated by Earl, J., in the case of Gallanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, and approved by Mr. Freeman in a note to that case as reported in 1 Am. St. Rep. 831. It is there said: “An abutting owner, engaged in building, may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers; and the use of a street for public travel may be temporarily interfered with in a variety of other ways, without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be l’easonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact to be determined upon the evidence relating thereto.” Under this doctrine it was at first thought that the placing of a fixed track of rails in a street, on which street cars were to be operated, was an unwarranted obstruction of the street, though the cars were drawn by horses or mules; but all the courts held that it was not an unwarranted obstruction, but was a means of facilitating public travel along the street, and was therefore not a nuisance but an improved mode of use of the street for the purpose intended. The New York court, however, held that, while it was not a permanent obstruction, yet it was an additional seiwitude imposed upon the high
In the course of progress and the development of street transportation, the horse car was superseded by the dummy or steam line, and this by the electric car system; and it was in turn contended that each of these agencies of travel involved an unauthorized, unwarranted use of the streets, and therefore constituted an obstruction and a nuisance, or, if not a nuisance, an additional servitude imposed upon the highway, not included in or authorized by the original dedication or condemnation. This question was first considered by this court in the case of Perry v. N. O., M. & C. R. R. Co., 55 Ala. 413, 28 Am. Rep. 740, wherein the court, through Stone, J., spoke as follows: “The introduction of railroads as highways of travel and transportation has seemingly disturbed some of the old landmarks, and requires of the courts, in accommodation to the spirit of progress, that we apply principles, long well understood, to new conditions and exigencies. ‘All property/ says an eminent authority, ‘is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.’ — Commonwealth v. Alger, 7 Cush. [Mass.] 84, 85, per Shaw, C. J. ‘By this general police
In Perry’s Case it was held that an ordinary commercial railroad laid in a street was an additional servitude, and that a municipal corporation, without express authority from the Legislature, could not authorize it.
The question was again before this court in the case of Western Railway of Alabama v. Alabama Grand Trunk Railroad Co., 96 Ala. 272, 11 South. 483, 17 L. R. A. 474, in which case the authorities were reviewed; and it was held that: “Where a railroad company, under express legislative and municipal authority, constructs its road on a street in a city, the fee to which street is in the proprietors of the property abutting thereon, such railway company is not a trespasser nor its railway an unlawful obstruction or nuisance upon such street, and that an injunction will not lie in favor of such proprietor to restrain the construction of the road. — Perry v. N. O., etc., Railroad Co., 55 Ala. 413, 28 Am. Rep. 740. But even in such cases, if the road is so constructed as to interfere with the easement of access residing in the proprietor of the property abutting on the street, or as to cause other special damage to his property, such proprietor is clothed with the right to prevent such injury by resort to a court of equity, or to redress the same in a court of law as he may elect. — Highland Ave. & B. Ry. Co. v. Matthews [99 Ala. 24] 10 South. 267 [14 L. R. A. 462] ; Evans v. Sav. & West. Ry. Co., 90 Ala. 54 [7 South. 758].”
The question was again considered in the case of Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 137, 24 South. 502, 43 L. R. A. 233. It was there said, as to the three modes of transportation of passengers: “The electric railways, such as we are now considering, are of comparatively recent development, yet, as is of common knowledge, they have practically superseded all systems of street railway enterprise (saving the cable systems in the larger cities), and their nature and modes of construction and operation, as affecting or not the legitimate use of streets within the implied contemplation of the dedication, have been subjects of frequent consideration and adjudication by courts of last resort in this country; and it may be said that there is almost unanimity in the adjudications that such uses are legitimate uses of streets, by the permission of municipalities, without any
In Baker v. Selma Street & Suburban Railway Co., 130 Ala. 474, 30 South. 464, after quoting the above, it was said that: “The construction and operation of an electric street railway with municipal consent, along a public street, and conforming to its grade, with no special injury to the fee, is not the imposition of an additional servitude for which the owner of the fee can demand compensation.”
The case of Morris v. Montgomery Traction Co., 143 Ala. 246, 38 South. 834, was a case very much like this at bar. There the street car company proposed to lay one track only in a very narrow street. The bill alleged : “That said street Avas very narrow, being only 24 feet in width, and Avas one of the principal thoroughfares in the city of Montgomery, and was passed by a great number of people daily, in wagons, buggies, and other vehicles. That the street railway proposed to occupy 10 feet of such street, and would thus prevent the passage of vehicles thereon, which would result in the necessary abandonment of such street, to the great inconvenience and injury of complainants. That property on said street Avould be exposed to greater dangers from fire, for the reason that fire engines and apparatus could not pass a car thereon.” The court in that case held that complainants were not entitled to injunctive relief, citing the decision of 119 Ala. 144, 24 South. 502, and 130 Ala. 474, 30 South. 464 (above quoted from), and also Joyce on Electric Law, and Booth and Nellis on Street Railroads; the court quoting and saying: “ ‘Streets and highways are dedicated to the new use of the traveling public, and street railways, Avhich are for the purpose of facilitating travel, impose no additional burden upon the abutting owner, and are a public use.’ If they create noise, dust, and vibrations, and are
The OAvnership of lands which have been taken for, or dedicated as, public streets of cities, for most all practical purposes, is in the public. It is true that the naked fee often (as in this case) remains in the abutting proprietor; but this is not allowed to interfere Avith the use of the street as a highway by the public.
Lands once taken for, or dedicated as, public streets are taken for all time for the purpose of providing a means of passage common to all the people, and may be rightfully used in any way that will best serve this purpose. The public thus acquire the right of passage over every part of it, from side to. side, and from end to end. They acquire the right to so use it, not only by the means of vehicles then in use, but also by other means aiid vehicles Avhicli science and the improvement of the age may invent or discover, to meet the needs of
We do not think that the laying of a double track in the street, which is 34 feet in width, and in the manner alleged in this bill, is an unwarranted nse of the highway, and one not included in, nor contemplated by, the original dedication of the street in question. If one line of the kind in question is for the purpose of “facilitating travel,” and “imposes no additional burden upon the abutting owner,” nor a “new servitude” upon the land, for which the owner is entitled to compensation, but is “only an improved method of using the street for public travel,” then two lines or a double tracking of the same line, provided the public travel justifies and demands the same, must fall within the same category.
It may be that one line or a single track will not afford proper or adequate means of transportation for the requirements and demands of a growing city; and, if not, then we can see no actionable wrong in the city’s allowing or providing for two or more lines upon one street. We do not mean to say that a city cannot exceed its authority in placing so many car lines and cars
It is very true that complainant and others who desire to have wagons and other vehicles stand at or near the curbing for the purpose of loading and unloading goods and freight may suffer some inconvenience; but, as we showed at the outset of the opinion, this is a convenience allowed them by the law, which must yield to that of public travel along the street, whether it be in cars, in wagons, on horseback, or in automobiles or in omnibuses. The old adage that “the street car is the poor man’s carriage” is modernized so that the saying-now is, “The street car is the poor man’s automobile.” The streets are primarily for public travel, for pedestrians and vehicles and conveyances in motion, and not for the purpose of their standing thereon. One of the laws of the road is, “Move on, don’t stop.” The policeman on duty in a crowded street proclaims it when he continually shouts, “Move on, don’t block the street or sidewalk.”
If the street in question is much used by many people in vehicles, as is alleged, then the complainant’s right to stand his wagon in the street, at his curb, must yield to the right of the many people to pass along the street if both cannot be done at the same time. His rights and those of the public, the many travelers of the highway, are1 the same, whether they all be in wagons, car
There is shown no good reason why the complainant cannot use his premises in the same manner, after the two tracks are laid, that he did before. It might be more inconvenient and more dangerous to load and unload wagons at the curb after than before; but this is true as to all increased travel on a given street, whether it be in cars or in other vehicles. An additional line of public carriages, omnibuses, taxicabs, or stagecoaches makes travel along the highway in other conveyances more inconvenient and more dangerous, to say nothing of increasing the congestion by standing on the streets. The only difference as to another line of street cars is in degree and not in kind, except that the cars must move on a fixed track.
The bill in question claims two kinds of damages to the property of complainant, viz., damages resulting from destruction or impairment of his right of access to his property, and those resulting from increased danger to travel from collisions with passing cars. The latter is an injury or a damage which complainant would suffer in common Avith the general public, and one which would not authorize a private action.
The real and only serious question in the case is the alleged impairment of complainant’s right of access to his residence and property Avhich abuts on Twentieth street. The main fact alleged to show such impairment is that the car track will be laid so close to the curb as to make it impracticable and dangerous for wagons or other vehicles to stand in the street near the curb for the purpose of loading and unloading goods at his resi
We are constrained to hold, however, on the undisputed facts, that there avüI be no substantial impairment of the easement of access to complainant’s residence. The most that can be said is that the access may be made more inconvenient by reason of the fact that Avagons or other vehicles cannot, with safety, stand at the curbing while a car is passing; but, as Ave have before said, this is one of the natural and “to be expected inconveniences” from traffic on a street of this kind, and one that must be held to have been contemplated or included in the original act of dedication or condemnation of the land to the use of a public street in a great city.
The case of Wagner v. Bristol R. L. Ry. Co., 108 Va. 594, 62 S. E. 391, 25 L. R. A. (N. S.) 1278, is the authority nearest in point that Ave have been able to find. The bill in that case sought to enjoin the construction of a surface street car track at the side or edge of the street. The allegations Avere: (1) That an additional servitude was imposed upon the land occupied by the streets; (2) that ingress and egress were unreasonably interfered with; (3) that complainant’s property would be thereby made less valuable, desirable, and comfortable as a residence. That state has a constitutional provision like section 235 of ours, to the extent that it provided compensation for “injury” to property as well as for the “taking” thereof. The court in that case held: “Charter authority of a municipal corporation to permit car lines to be built in its streets, and to determine and designate the ronte therefor, is not modified by a statute under which the street car company is acting, which provides that such tracks shall not in any wise obstruct or interfere with the use of the street, or
It- is further said in the opinion in that case, quoting-in part from others: “In Henry Gaus & Sons Mfg. Co. v. St. Louis, E. & L. R. A. Co. 339 [113 Mo. 308, 20 S. W. 658] 18 L. R. A. 339 [35 Am. St. Rep. 706], the tracks were laid so close to an abutting owner’s property as not to permit wagons to stand between the tracks and the property; yet it was expressly held not to come under the damage clause of the Constitution. The convenience and advantage of all the inhabitants of the city, and of the public at large, must be regarded as the objects contemplated Avhen the street was laid out or opened. A narroAver construction Avould require a sacrifice of the greater interests of the community and the public to the inferior and subordinate claims of the local lot owner. Such a construction of the law governing the dedication of public streets and the reserved rights of the original landowner and his assigns in the street, by unreasonably increasing the cost of rights of way or
It follows, from what we have said, that complainant is entitled to no relief in equity under common-law principles, nor by virtue of section 235 of the Constitution of this state.
It is unnecessary for us to now construe section 227 of the Constitution for two reasons: First, the only damages sought in this bill are those as for injury to or impairment of the easement of access; and we are certain that no such damages are shown as are recoverable under section 235 of the Constitution; second, whatever may be the purpose, object, or effect of section 227 of the Constitution, it is unlike section 235 of that instrument in that it does not contemplate or require the payment of damages before the injury, and would therefore not support an action until the injury was suffered.
We are unable to see how or why the street car company, in a suit like this, should be required to refund to the complainant taxes which he has paid for paving the street in question. It is a mere incident that, if
We have examined many reported cases like the one in question, and we feel sure that all the cases in which injunctive relief, such as is prayed in this case, was granted are readily distinguishable from this case on one or more of the following grounds: They were decisions from courts of states such as New York, in which an ordinary surface street car track, laid at grade, was held to be an additional or a new burden or servitude, and not to have been included or contemplated in the original dedication of the highway; or the construction of the track, poles, or line was held to have practically destroyed the highway or street for travel in vehicles of other kinds; or the complainant’s easement of access was held to have been materially and permanently impaired, as by the changing of the grade of the street; or the construction was held not to have been authorized by the state or the municipality which was charged with the duty of controlling or regulating such affairs; or the construction was held to have been done or attempted contrary to or in violation of the rights conferred by the state or other municipal authority. Cases, of this kind are Slaughter v. Meridian L. & Ry. Co., 95 Miss. 251, 48 South. 1040, 25 L. R. A. (N. S.) 1265;
It should be noted that the New York court has admitted that the Aveight and number of authorities are against their holding; but the court adheres to its former decisions for the reason that the doctrine has noAV become a rule of property, and for the sake of stare decisis. The Nebraska decisions have been rather severely criticised, and, without approving or disapproving, Ave merely quote from the Supreme Court of Wisconsin, where it is said: “We are aware that there is at least one case decided in a court of last resort Avhere a different conclusion was reached. We refer to Jaynes v. Omaha St. R. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751. The opinion there shoAvs that the subject treated did not receive careful study. The conclusion reached is contrary to all the authorities cited by the court. A
Complainant relies in part for his contention upon the doctrine announced by Mr. Lewis in his valuable work on Eminent Domain, and he quotes a text therefrom. We, like complainant, believe that Mr. Lewis has stated the true doctrine as to the right to relief of abutting OAvners in cases like this; and we not only quote the text relied upon by complainant, but we also quote the context as stating the true rule as to the right of the abutter to injunctive relief. In section 636 (pages 1368, 1369, 1370, vol. 2) he says: “A distinction is made in some of the states between street railroads and commercial roads; the former being held to be a legitimate use of a street as a public highway. According to this vieAV, the abutting owner has no more ground of complaint in case a street railroad is laid down and operated in front of his property than he would have if a line of omnibuses was operated on a street. But, where street railroads are put in the same category with commercial roads, the same rules and principles will apply in respect to the rights of abutting OAvners. They may enjoin the use of the street for such purposes in front of their property until the right has been obtained in
It follows from what Ave have said above that complainant can take nothing by his cross-assignxnent of errors; that the appeal of respondent (appellant here) is Avell taken; and that its demurrers to the bill should have been sustained and the temporary injunction dissolved. A decree to this effect Avill be here entered.
Affirmed on the cross-appeal, and reversed, rendered, and remanded on the main appeal.