51 So. 153 | Ala. | 1909
Lead Opinion
Section 235 of the Constitution of 1901 (section 7, art. 14, of the Constitution of 1875) provides that “municipal and other corporations and in
We would make no war upon the opinion of Justice Sayre, as concurred in by the Chief Justice, if section 235 of the Constitution did not exist, as it is a clear enunciation of the rule under the common law; but we do think it does not properly apply the terms of the present Constitution to the facts in the case at bar, and that the distinction attempted between excavating and removing dirt from a street in front of á lot and in cutting down and removing shade trees from the sidewalk is without a difference. This court has held that an abutting owner is entitled to any injury to the value of his property, caused by the lowering of the street or sidewalk, and not due solely to the destruction or impairment of his right of ingress and egress to and from his home; for as was said by Justice Somerville in the Maddox Case, supra, in discussing the influence of our Constitution: “If the contiguous proprietor of' a house and lot is injured, in the sense of being damaged, by the grading of the street * * * and by reason of this improvement the pecuniary value of such property is diminished, the owner is entitled to be compensated for the damage he has sustained.” If a house is denuded of the shade trees in front of same, and it is thereby made less comfortable, or its beauty is impaired, so as to affect its use and enjoyment, and thereby render it less valuable, we see no reason why the owner, would not be entitled to recover the damages sustained, whether his right of ingress and egress is affected or not. The
Nor do I think the authorities relied upon in the minority opinion in conflict with the holding in this case. They are inapt, as they Avere decided either under the common law or in states Avith no constitutional provision like burs. Indeed, as Avas said in the Maddox Case, supra: “I do not discover precisely the same language in the Constitution of any other state, except those of Alabama and Pennsylvania.” Therefore decisions on the subject in jurisdictions other than Alabama and Pennsylvania are of little value in dealing with the construction of this section of our own Constitution, and, while there may have been some wabbling by the courts of these two states on this important subject, the more recent decisions of each of said states favor a liberal construction of this clause in favor of the property owner. “It is generally conceded that provisions of this character are remedial in nature, giving damages where none before Avere allowed, and that therefore they should be liberally construed to effect their object.” — Maddox Case, supra. Indeed, I think there is an expression on page 230 of 109 Ala., and page 1 of 19 South. (31 L. R. A. 193, 55 Am. St. Rep. 930), in the Francis Case, while not decisive of said case, that was intended as a warning signal against this court’s falling into what I consider the error of the minority. The conrt there emphasized the fact- that it did not mean to hold that a city would be absolved from liability for cutting trees. True, it was qualified by the rule as to necessity; but the writer evi
It is needless to discuss the assignments of error in detail, as it is sufficient to say that the trial court proceeded under a misconception of the plaintiff’s constitutional rights, and the judgement is reversed and the cause is remanded, in order that the issue may be tried under the rule we have attempted to lay down in this opinion.
Dissenting Opinion
(dissenting). — The damages laid in the complaint are for the depreciation caused in the value of plaintiff’s property by deprivation of the shade and ornament of trees which had stood upon the margin of the sidewalk, and which were destroyed by order of the defendant municipal corporation. Apart from the damages alleged to have been caused by the removal of the trees, there is no complaint of any such damages as might have'been caused by a change of grade. Non con-stat the result of the improvement, apart from its effect on the trees, was to leave unaffected the value and beauty of plaintiff’s lot, or even increased its value and beauty. The naked question is whether the plaintiff is entitled to compensation for the loss of the shade and ornament of the trees. The trial court held that there could be no recovery.
The writer is of the opinion that there was no error in that holding; his notion being that the injury complained of was damnum absque injuria, for that trees left standing in a street after its acquirement for the public by condemnation or otherwise, or subsequently planted there, stand in the highway by the mere license of the municipality, such license being revocable at the will
Appellant relies upon the case of City Council of Montgomery v. Maddox, 89 Ala. 181, 7 South. 433, and
My views are to be found in section 132a of Lewis on the Law of Eminent Domain, which,'under the circumstances obtaining in respect to this cause, I cannot do better than to quote: “Where the public owns the fee of the street, the abutting owner has no proprietary right in the soil or minerals, or in the herbage or trees growing thereon. The public authorities, may, therefore, cut or remove the trees in their discretion, and the abutter has no remedy, though his property may be damaged thereby. But, when the abutter owns the fee of the street, he owns the trees thereon, subject to the
I apprehend that a tree which stands in the way of an improvement necessary and proper to facilitate travel —e. g., a tree which stands in the way of paving — may with perfect propriety be said to stand in the way of travel itself. In City of Atlanta v. Holliday, 96 Ga. 546, 23 S. E. 509, it was said: “Where thé fee in the street itself is vested in the city authorities, as was the case in Castleberry v. City of Atlanta, 74 Ga. 164, an individual acquires no personal right in the preservation of shade trees standing thereon as would enable him to interefere by injunction with the city authorities in the exercise of a discretionary power of removing such trees as obstructions upon the public streets. He has a right to the maintenance of the street as a public highway, unobstructed; but he has no legal right to the continuance in the street of a shade tree after the city authorities have concluded to remove it as an obstruction. In such cases the control of the streets by the city authorities is absolute.” In the case then under consideration, the city having an easement only, the destruction of trees was enjoined because the court found their destruction to be a palpable oppression under the circumstances of that case. In Bills v. Bellnap, 36 Iowa, 583, it was said: “We do not say that, if the public convenience demanded the removal of the trees, they should be or could be retained for plaintiff’s comfort or to gratify his taste.” In Mt. Carmel v. Shaw, 52 Ill. App. 429, while the court showed a strong inclination to control the discretion of the municipal authorities, it held that, when a shade tree in the business part of a city becomes' an obstruction to travel or business, it may be removed by the municipal authorities as the public interests re
Whether trees may be mutilated or removed to make room for electric wires or railroads, or other such uses, depends upon whether such uses are considered to be' burdens upon the highway additional to the uses contemplated in' its original dedication to, or acquirement for, public use. If such uses are held to constitute an additional burden, such improvements cannot be put upon the street Avithout compensating the abutter, and this compensation would include any injury to his trees. • — Id. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep 930, and
I have seen no case in which it has been held that the abutting owner is entitled ¿s of right to the shade and beauty of trees planted in the street subsequent to the acquirement by the public of a fee-simple title, or, for that matter, subsequent to the acquirement of an easement for the uses of a public highway. There was no invasion of any legal right of the plaintiff when the trees were felled, and, in consequence,' she cannot recover.
Á majority of the court, however, hold that the plaintiff was entitled to recover the difference in the pecuniary value of her property before and after the improvement, and this without regard to the ownership of the soil in the street.