115 So. 165 | Ala. | 1927
A bill to stay waste, pending suit, has equity. Wadsworth v. Goree,
Eugene Ballard, Rushton, Crenshaw Rushton and Steiner, Crum Weil, all of Montgomery, for appellees.
Each purchaser of a lot according to a map or plat recorded under the statute takes an interest in fee in all the streets designated on such map or plat. The statute under which the suit is brought would be unconstitutional if construed to deprive the owner of a lot of his property without just compensation. The bill is wholly without equity. Rudolph v. Birmingham,
In order to support an injunction for the purpose of preserving the status quo of property rights, where a substantial question is to be decided between the parties, there are, according to the authorities, two points as to which the court must satisfy itself:
"First, it must satisfy itself, not that the plaintiff has certainly a right, but that he has a fair question to raise as to the existence of such a right. The other is whether interim interference, on a balance of convenience or inconvenience to the one party and to the other, is or is not expedient." Coxe v. Huntsville Gaslight Co.,
Following the plan of procedure thus indicated, we come to consider the equity of appellant's original bill. The bill, in our judgment, is wholly lacking in equity, and such being the case, there is no balance of convenience or inconvenience to be considered.
Appellant plants her case on section 10365 of the Code. There is no occasion to deny that the section may be operative in any circumstances. It may, for example, be invoked in the circumstances indicated by section 10360 of the Code, notwithstanding the acknowledgment and recording of the map or plat as declared by the next preceding section (section 10359) to be the equivalent of a conveyance in fee simple to such parts of the platted premises as are indicated on the plat as intended for street or other public use, or possibly in other conditions; but we are clear to the conclusion that, in the conditions shown by the original bill and exhibits in this case, the section in question (section 10365) can have no operation whatever and that appellant has no rights to be preserved by an injunction ad interim.
Appellant shows no presently available right in the area known as Cottage place. That street has been dedicated to the use of the public as a highway by its former owner, and, whether the public right thus acquired be that of an owner in fee simple (Code, § 10364) or that of an owner of an easement (Cloverdale Homes v. Cloverdale,
"Every line of the survey which served to mark those parts of the site which were intended to be reserved from sale for the use of the public became unalterably fixed — dedicated to the public for all time."
This we think is not to deny that the Legislature, representing the sovereign people, may provide for the vacation of public streets, due regard being had for the rights of the purchasers of lots, whether immediately on the street vacated or on other streets designated on the plat or map. Albes v. Southern R. Co.,
If it be conceded, for the argument only, that the court may interpose, in any circumstances other than those indicated in section 10360 of the Code to vacate a public street — and it will be noted that in a case under that section the court does not adjudicate (i. e., decide between conflicting claims) but in effect merely supervises and records what the parties in interest, with legislative consent, might as well do for themselves — we are clear to the conclusion that, on the facts averred in the present bill, no just cause or authority for such interposition has been shown, and that no order for the vacation of the street or to enjoin the municipal authorities, who are about to prepare the street for public use, should be made.
The decree dissolving the temporary injunction is affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *244