66 So. 502 | Ala. | 1914
This is a bill by an individual to abate a public nuisance, and incidentally to -have a decree for damages in consequence thereof. The nuisance alleged is the obstruction of a public street, by changing the grade of the railroad track where it crosses the street. Plaintiff lives upon and owns property abutting the street obstructed, but not abutting the obstructed portion. It is alleged that the obstruction causes plaintiff to take á more circuitous route to and from portions of the city of Cullman, and that she suffers damages in consequence thereof. There was demurrer to the bill, for want of equity, in that no
The equity and sufficiency of bills for this purpose have been frequently before this court. The judges’ have been very much divided in opinion on the subject, and for that reason the questions have been thoroughly considered by the full court on several occasions. The writer has on several occasions dissented from the majority opinion in cases like the one under consideration and in actions at law to recover damages for public nuisances; but the majority of the court have repeatedly held that bills like the present could be maintained, and that circuity of route, caused by the obstruction of a public highway, is an injury or inconvenience sufficient to give equity to a bill by an individual to abate a public nuisance such as the obstruction of a public highway. He feels that no good can. be accomplished by further dissent, and he therefore yields to the views of the majority.
Under the decision and opinion in the case of A. lagema Great Southern Railroad Co. v. Barclay, 178 Ala. 124, 59 South. 169, and those in other recent cases, the decree of the chancellor must be affirmed.
It is argued by appellant that the bill does not allege that the obstruction was unauthorized or unlawful. Counsel are mistaken in this, as the bill does expressly allege that the obstruction was unauthorized and unlawful.
Affirmed.