162 So. 109 | Ala. | 1935
The amended bill was for injunction and to abate a nuisance, was demurred to, and demurrers held not well taken and overruled.
The bill is illustrated by a plat or map of the properties of the parties.
The original bill was by several complainants, and was amended by striking all of the original parties complainant, except Mrs. Harman. *621
The demurrer was amended by adding the following grounds:
"7. Said bill as thus amended either undertakes to abate a public nuisance and is filed by an individual instead of the State of Alabama, or is a radical departure from the original bill which sought to abate a public nuisance in that as now framed it seeks to abate a nuisance, whether public or private, from which damages result to the complainant peculiar to her and different in kind from that suffered by the public generally.
"8. Said bill as thus amended either makes an entirely new party complainant, substitutes a new cause of complaint, or is a radical departure from the bill as originally framed."
These present the issues for decision.
It is established in this jurisdiction that equity may abate a public nuisance, and that a private person can maintain a bill for abatement of such nuisance when it is shown that such party has suffered a special injury therefrom, which is real and distinct from that suffered by him in common with the public at large, and is so continuous in nature that the legal remedy for damages would be inadequate. Whaley v. Wilson,
The amended bill did not make an entire change of parties, or introduce a new cause of action, or so vary the averred facts on which there would be an essential change in the character of relief prayed and to which complainant is entitled; that is, the amendment was not repugnant to, nor inconsistent with, the object of the original bill, and was within the rule that obtains as to amendments. Section 9513, Code; Moseley v. Ritter et al.,
The case of Marshall v. Olds,
The decree of the circuit court is without error, and is affirmed.
Affirmed.
GARDNER, BROWN, and KNIGHT, JJ., concur.