82 Ala. 190 | Ala. | 1886
— The prima facie case made by the bill undoubtedly entitled the complainant to the relief of a court of equity, through the aid of an injunction, the purpose of which may be both protective and prohibitory. The allegations of the bill show, that the complainant is the owner in fee of two lots, in the town of Leeds — a municipality incorporated under the general laws of the State — and that said lots fronted or abutted on one of the public streets, known as Twelfth Avenue. The title was derived from one Montgomery, who, about three years previous, had laid off the town, and dedicated the streets and avenues for the ordinary uses to -which such public highways are commonly devoted. The ultimate fee in such avenues or streets is averred to be in the complainant, subject to the public easement implied by such dedication. It is averred that the defendant railroad company is proceeding to construct a railroad track through the middle of such avenue, and to raise an embankment for that purpose, from eight to thirteen feet high, without the consent of complainant, or any proceedings of condemnation, or other authority of law; that this structure will cut her off from the business part of the town, and depreciate the value of her adjoining lots about fifty per cent., and thus constitute a public nuisance resulting in special injury to her.
The court did not, for these reasons, err in refusing to dissolve the injunction, upon the alleged ground that the bill was wanting in equity. This we repeat, is plain, under the authorities.
This being true, it would follow, as an implied inference, that the complainant would also be the owner of the ulti
The answer, it is true, denies that the complainant in this case owns the ultimate fee to the centre of the avenue, and alleges that it remained in Montgomery, the original grantor. But it fails to aver facts showing this to be true. It does not allege that, in making the conveyance to complainant, there was an express reservation of such fee in the grantor, made in the deed of conveyance; and nothing less than this, or its equivalent, would answer to rebut the legal inference to the contrary. The answer, therefore, contains nothing more than the naked denial of a legal conclusion, unsupported by facts. The bare denial in the answer that the complainant has suffered any damage is of the same nature, being the mere denial of a prima facie legal conclusion from facts stated in the bill.
The court did not err, in refusing to dissolve the injunction on the denials of the answer.
The decree is reversed, and a decree will be rendered in this court in accordance with the foregoing opinion.