50 So. 1015 | Ala. | 1909
The. bill is filed by a number of abutting property owners against a railroad company to enjoin the erection and maintenance of a passenger train umbrella, shed, and iron fence inclosing it, in and along a public street in the city of Mobile, in front of their property which abuts on the street, where the structures complained of are being erected by the defendant railroad company. The bill alleges, among other things, that the street in question is a public one, made such by dedication, and that the same has been in contant use as such for more than 40 years; that it is a much-used street by the public, and by the complainants and their tenants; that the depot or shed is a wooden structure
The grounds of the demurrer were as follows: (1) Because the exclusive power of prohibition and removal of obstructions and unsightly objects from the city of Mobile is vested wholly in the board of public works of said city. (2) Because depreciation in the value of their properties and in the use thereof is the only injury that the allegations of the bill of complaint show that complainant suffered different in kind from that suffered by the public generally. (A) Because the right that each complainant seeks to enforce is different from the right sought to be enforced by others of the complainants. (B) Because the injury suffered by each of
It is insisted on this appeal that the bill is without equity, and that it is too indefinite and uncertain in its averments as to the interests of the respective complainants in and to the street thus obstructed, and as .to the facts, to show the nature, character, and extent of their respective damages or injuries by reason of the structures; that the bill is too indefinite and uncertain as to the location of the structures in the street, and .as to whether or not any part of the street as to which the complainants own the fee is taken, and, if so, how much and what part; and that the averments are too indefinite and uncertain to show that- the damages or injuries suffered by complainants aré different in kind and degree from those suffered by the public in consequence of the obstruction. It is sufficient to say that none of these objections was sufficiently pointed out by the demurrers to be considered on this appeal. The trial court could not and did not pass upon them in the lower court.
The statute (section 5340 of the Code of 1907) provides: “No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection'can be taken or allowed which is not distinctly stated in the demurrer.” Section 3121 of the Code of 1907 provides as follows: “A demurrer to the bill must set forth the grounds of demurrer specially, unless the defendant desires to test the equity of the bill, when he may do this by a general demurrer, 'that there is no equity in the bill.’ The motion to dismiss for the want of equity is hereby abolished.” Under these statutes it is the uniform practice to confine the rulings and decrees on demurrers to the special causes assigned. •
The second ground of demurrer, that the only injury shown to have been suffered by complainants,- different in kind from that suffered by the public generally, is the depreciation in value of complainants’ property, is not well taken. The bill does' aver other injuries different in kind and degree from that suffered by the public generally. It may be that some of these are not alleged Avith sufficient certainty; but the demurrer should have pointed out such defects, if such there be.
The other grounds of demurrer go only to the misjoinder of parties complainant. These grounds are not Avell taken to this bill. We know of no rule of law, pleading, or practice Avhich prohibits the joinder of complainants such as those in this suit. .The rights, damages, and injuries of all are alleged'to be of the same kind, and to differ only in extent and amounts. The interests of the abutting OAvners in and to the street, so far as appears from the bill, are common, and the damage, if any, is common to all; and, there, being but a single object to be accomplished by all, they may unite as co-complainants in a single bill, for an injunction as to an alleged public nuisance in the obstruction of the public street. — 1 High on Injunctions, § 635, pp. 614,
It follows that none of the grounds of demurrer assigned are well taken, and that the chancellor properly overruled the demurrer and his decree thereon must be affirmed
Affirmed.