119 Ala. 144 | Ala. | 1898
(After stating the case as above.) We do not understand it to be insisted in this case, that the Telephone Company has the exclusive right to the streets and avenues of the city of Birmingham for the
The matter of dispute between them, as disclosed by the bill, demurrers thereto and motion for its dismissal,
For the purposes of the case, if conceded that defendant, in operating its electric railroad, had a right to use the streets of said city, equal, in all respects, to the right of complainant to the enjoyment of the same for the purpose of its telephone system, which is as much as defendant may claim, the concession would put the-
The contention of appellant, that the court beloAV erred in overruling the motion to dissolve the injunction, proceeds upon the assumption, that there is no equity in the bill, as appears on its own allegations. It may be admitted, that a mere allegation of irreparable injury Avithout a statement of facts.to show such injury, is a mere conclusion, and can not be made the ground for granting an injunction. The facts in this case, to shoAV such alleged injury are fully set out. Whether they are fully enough aArerred or not, we Avill not now discuss. That they sIioav injury to complainant of a serious character is manifest. The right in complainant to use the street, cannot, under the allegations, be denied. The conduct of defendant, as shoAvn, is an unwarranted usurpation, amounting to a trespass on complainant’s rights, which is recurrent, continuous and tending to a multiplicity of suits. This, a court of
Moreover, the authority of an equity court to grant and maintain this injunction, may be rested on that other ground of chancery jurisdiction, that such courts will interfere to control such corporations as these, to keep them within the line of their authority and subject to law, in order to prevent such usurpations and damages as are here complained of. — E. & W. R. Co. v. E. T., V. & Ca. R. Co., 75 Ala. 275; H. A. & B. R. R. Co. v. Matthews, 99 Ala. 24; Railroad Co. v. Witherow, 82 Ala. 190; M. & M. R. Co. v. Ala. M. R. Co., 23 So. Rep. 57.
The damages to complainant in this case as shown, are not incidental, growing out of a careful and lawful use of the streets and avenues by defendant, and such as are damnum absque injuria; but they arise from the misconduct of defendant in the nature of an abuse of its franchise. These damages the1 defendant might, as appears, avoid, but which it without reason claims the complainant was under obligation to remove.
If the facts of this case as averred are true, as the demurrer and motion to dismiss admit, it is difficult to see why the bill does not contain equity. There was no error in refusing to dissolve the injunction.
Affirmed.