| Ala. | Apr 17, 1913
(1) The original bill was filed for the purpose of enjoining the obstruction of public highways and to abate a nuisance. The complainant, in her original bill, alleged that the obstruction of the highways and the maintenance of the nuisance constituted a material injury to certain of her real estate, which was situated on or near said highways, and which real estate was materially depreciated in value on account of the maintenance of such nui
The following allegations of the original bill of complaint give a clear and succinct statement of the grounds — the only grounds — upon which the complainant, in her original bill, sought the interposition of a court of equity': “Complainant alleges that by reason of the obstruction of said portions of paid avenues, and by reason of the more circuitous route therefrom necessary to be taken to approach her property, the value of her property is greatly impaired and injured, and she suffers thereby a special and particular damage, beyond that suffered by the public in general, by the obstruction of said portions of said avenues; and the complainant alleges that the respondent is maintaining a public nuisance in said portions of said avenues, and is excluding therefrom and from the use thereof all other persons than its own agents or employees. Complainant alleges that said obstruction is being maintained by said company with full knowledge and notice of the fact that said avenues were theretofore dedicated to the public as and for public streets and highways, and that the said obstruction and the exclusion of all persons therefrom, who have a right by reason of said dedication, will be continued and maintained by said respondent, unless restrained by this honorable court; and that the respondent will not abate or remove said nuisance, unless compelled thereunto by this honorable court. Complainant alleges that the respondent is using said por
This court, in the above-cited case, held that the original bill contained equity and was not subject to demurrer.
It appears that the respondent, the Sloss-Sheffield Steel & Iron Company, owns all of the land in the city of Birmingham which is bounded as follows: On the east by Thirty-Second street, on the south by First avenue, and on the north and west by the right of way of the South & North Alabama Railroad. This piece of land is triangular in shape, and through it, running east and west, are Second and Third avenues. The complainant’s lands lie immediately east of the above lands, having as their western boundary said Thirty-Second street, and their southern boundary said First avenue. Second and Third avenues also run through complainant’s property. Upon complainant’s lands are a large number of residences.
It seems that the respondent has on its land, or other lands near it, a furnace, and it has for many years been using the above-described lands, which belong to it, as a place upon which to dump its slag. This slag has been and is being dumped, not only on the respondent’s own land, but in the streets and avenues running through that land, and the slag so deposited is in one continuons heap or pile from First avenue, the southern boundary of the land, to the South & North railroad right of way, its northern boundary. Complainant’s lands and houses are immediately across the street (Thirty-Second street) west of said slag pile. In throwing fresh slag upon the slag pile, dust and steam are created,
The complainant has amended her bill by alleging the above facts, and by praying, not only that the respondent be required to remove from the said public highways all substances which it may have deposited therein, which was, in substance, the relief she sought in her original bill, but also that respondent “may be enjoined from placing upon said property, shaded black in Exhibit A, any dust or other substance which may be blown upon said Thirty-Second street, or complainant’s property bounded thereby, and be offensive to persons thereon, and from placing any substance thereon from which any fumes, vapors, or odors or heat may emanate which will be offensive to persons on said street or said property, and from placing any substance within the public highways traversing said property, shaded black, which may obstruct the sight or view of the business district of Birmingham of persons on said Thirty-Second street or complainant’s said property,” etc.
It appears from the original bill and the bill as amended that Second and Third avenue (two of the avenues which, according to complainant, are obstructed by the slag pile) are crossed by the right of way of the South & North Railroad. At the point under discussion these avenues run east and west, and the railroad right of way runs across them in a northerly and southerly direction. In the original bill it is alleged that these avenues run across the right of way, and that
In her original hill the complainant averred a special injury to her property, because the slag in Second and Third avenues obstructed those avenues and prevented free access into the city of Birmingham, which is across the right of way from her property.
The argument of the appellant is that, as no right is shown, by the allegations of the amended bill, in the public to cross the railroad right of way on Second and Third avenues, the essential averment which gave equity to the original bill is stricken from the bill as amended.
We do not think that this argument is well founded. That which gave equity to complainant’s original bill was the allegation that in maintaining a slag pile in and across certain named streets and avenues situated near and contiguous to complainant’s real estate free access to complainant’s real estate was being unlawfully impeded, thereby causing complainant a special and peculiar damage different in kind from that suffered'by the general public, in the decrease in the value of her property. The situation of her property with reference to said streets and avenues — its contiguity to said streets
(4) The bill as amended sets up — and this is an allegation not found in the original bill — that the slag pile not only materially interferes with the free access to complainant’s lánd, but that it also interferes with the view down Second and Third avenues from her property. In other words, that the occupants of her property, when they look down these avenues where the vieAV should, under the law, be unobstructed, have before their eyes an unsightly slag pile cutting off or interfering with the further view down those avenues, and that for this reason her property is materially and specially injured. The purpose of the original bill and the amended bill is the same, viz., to abate the nuisance created by ob
(5) It appears from the allegations of the bill as amended that the complainant, having become involved with the respondent in litigation about the nuisance which it has created by obstructing the streets and avenues to which we have above referred, and which, as stated she alleges has caused a material and special injury to her in the depreciation of the value of her property, desires, in this suit to settle all matters of controversy, which are of equitable cognizance, between her and respondent, which grow out of the maintenance of the slag pile by respondent in the streets and avenues and on its own land near or contiguous to complainant’s property. In other words, the complainant, in her amended bill, for the first time, alleges as we have already in substance said, that “large quantities of fine dust and other substances deposited by defendant on said pile are carried by the winds into Thirty-Second street, between First and Third avenues, and into and upon complainant’s buildings fronting on Thirty-Second street, to the great discomfort of persons on said street and premises, and that when the molten waste is dumped upon the said pile, and at other times, offensive and unhealthful fumes, gases, and odors emanate therefrom and pervades and enter upon said part of Thirty-Second street and complainant’s buildings and premises fronting therein, and when such molten waste is placed thereon by defendant great heat, which is unhealthful, uncomfortable, and unpleasant, is caused to pervade
Complainant prays, in her bill as amended, for the first time, as we have already said, that the respondent be enjoined from placing upon its own property near or contiguous to complainant’s property any substance which may cause dust, fumes, vapors, or heat to be blown upon her property. This part of the prayer of the bill is predicated, of course, upon the allegation that such dust, fumes, vapors, or heat so created and blown upon her property are a nuisance, which causes to complainant a peculiar and special damage, different in kind from that suffered by the general public, in the depreciation of the value of her property caused thereby.
“A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter, or founded on the same contract or transaction, or relating to the same property between the same parties.” —Code 1907, § 3095.
When a bill is, and when a bill is not, multifarious, is frequently one of the most difficult questions which a
' (6) “Before final decree the amendment of the bill is a matter of right. The limitations upon its exercise are that it shall not operate an entire change of parties, nor make a new case, nor work a radical departure from the cause of action stated in the original bill. Neto matter or new claims may be introduced, entitling complainant to additional or different relief from that specially prayed in the original bill, if it is not repugnant to the prayer and purpose” of the original bill. — Ingraham v. Foster, 31 Ala. 132; Prickett v. Sibert, 75 Ala. 315" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/prickett-v-sibert-6511863?utm_source=webapp" opinion_id="6511863">75 Ala. 315; Seals v. Pheiffer, 81 Ala. 518" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/seals-v-pheiffer--co-6512712?utm_source=webapp" opinion_id="6512712">81 Ala. 518, 1 South. 267; Fite v. Ken
There is nothing in the proposition that the case made by the bill as amended is a departure from the case made by the original bill.
After a careful consideration of this record we have arrived at the conclusion that the bill as amended was not subject to the respondent’s demurrer.
The decree of the court below is therefore affirmed.
Affirmed.