41 So. 1025 | Ala. | 1906
Lead Opinion
The bill was filed to enjoin the town of New Decatur from damaging complainant’s store property by certain proposed changes in the
Whatever may be the law elsewhere, it is too well settled in this state for further controversy “that, under constitutional guaranties, a municipal corporation may not take or injure the property of.a citizen in the exercise of .its power to improve its highways without first making compensation; and the right to injunctive relief in such a case as this exists without reference to the solvency or insolvency of the municipality and regardless of the consideration that he might recover full compensatory damages in an action at law.” — City Council of Montgomery v. Lemle, 121 Ala. 609, 25 South. 919; Avondale v. McFarland, 101 Ala. 381, 13 South. 504: Niehaus v. Cooke, 134 Ala. 223, 32 South. 728. We have, therefore, no doubt of the equity of the bill, unless its equity is destroyed by the allegations it contains respecting the petition by defendant and other citizens to the city council, wherein they requested the paving of Second avenue in front of complainant’s property, and preparatory to which the change of grade and other work complained of had been ordered. We are not of opinion that the petition merely to pave the avenue
The answer did not deny the avermeiits upon which the equity of the bill rested, and new matter, not responsive to the bill, cannot be considered on motion to dissolve. The defendant was not entitled to an unconditional dissolution. — Niehaus v. Cooke, 134 Ala. 223, 32 South. 728. The chancellor followed the practice approved by this court, and requested by the defendant, in dissolving the injunction upon the making of a cash de
This leaves for consideration pleas 4, 5, and 6, assignments of error specifying these as having been erroneously held insufficient.
Pleas 4 and 5 present substantially the same question and they may be considered together. A careful reading of the bill shows that the gravamen of the complaint is that the city is preparing to change the grade of the highway in front of complainant's property, without his consent and against his objection. So far as the work has proceeded, it has been done in pursuance of the plan to alter the gradé, preparatory to laying the brick pavement on the elevated line;.and the incidental consequences, alleged in the bill, showing the modum of the injury, are all attributed to the execution of the purpose by the city to establish a new grade for the highway. The question, therefore, is whether under the averments of pleas 4 and 5 the complainant was entitled to restrain the proposed work, or, upon the hearing, if these pleas should be proven, ought to have a decree for compensation. By section 427 of the code of 1896 an appeal lies to this court from a decree by the chancellor overruling a plea to a bill, or whát is the same thing, holding it to be insufficient; in this way, the judgment of this court may be obtained upon the sufficiency of a defense in an equity case interposed by plea, in advance of the taking of evidence, or a hearing upon the merits. — Glasser v. Meyrovitz, 119 Ala. 152, 24 South. 514. Several separate pleas may be filed or they may be incorporated in the answer, in which latter event, they must be treated as independent pleas. The setting down of a plea for hearing upon its sufficiency operates as an admission of the truth Of all the facts alleged for the purpose of invoking the judgment of the court upon the legal question whether these facts constitute a defense to the bill. — Tyson v. Land Co., 121 Ala. 414, 26 South. 507; Glasser v. Meyrovitz, 119 Ala.
If duplicity be a ground of objection to a plea in equity, it is not under our system in the case of a plea in a court of law.— (Bolling v. McKenzie, 89 Ala. 470, 7 South. 658; Corpening v. Worthington, 99 Ala. 541, 12 South. 426) yet we are of opinion the pleas now under consideration are not double. They do not contain two independent facts, nor two separate sets of facts, each .constituting a sufficient answer to the bill. We have already held that the petition for the .paving did not, in and of itself, operate to waive the complainant’s right to damages, or his equity to restrain the work until compensation should be paid or secured to him for the injury to his storehouse and lot under the practice of the chancery court in cases like this. The averments of the plea in respect of the petition for paving, and the decision of the city council to do the work, are matters of inducement leading up and converging to the one defense wdiicli they bring forward. This defense is that the complainant on being informed as to the proposed change of grade, and with knowledge of the new curb line, requested the city officials in charge of the work to proceed with the work, saying he intended to raise his house anyway and that he wished the street properly fixed while they were about it, so there would be no trouble concerning the street thereafter; and that the defendant acting upon the declaration and conduct of the complainant had gone to much expense in preparing the avenue to be paved according to the plans of 'the engineers, and had rendered itself liable for the payment of large sums for laborers and teams engaged to plow up the street and prepare it for the brick pavement.
The important question then is whether a citizen who consents to a change of grade, requests that the change be made, and who thereby induces the city to incur expense in and about the work, can recover damages to his property because of the altered grade, or arrest the
It has been expressly held that a person asking for the change of grade cannot complain; the case being Avithin the maxim, “volenti non fit injuria.” — Cross v. Kansas City, 90 Mo. 13, 1 S. W. 749, 59 Am. Rep. 1. When a person has consented to the act being done lie may not exercise hi,s legal right in opposition to that consent. — Morris C. & B. Co. v. Lewis, 12 N J. 323. And this court in Gootter v. Norman, 107 Ala. 585, 19 South. 56, has expressed its approval of the rule as> quoted by Mr. Story from a decision of the House of Lords: “It is a general laAV that if a man either by Avords or conduct has intimated that he assents to an act which has been done and that he aauII not offer opposition to it, although it could not have been lawfully clone without his consent, and he thereby induces. ánother to do that from Avhieh they otherwise, might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who'have given faith to his words, or to the fair inference to be drawn from his conduct.” A constitutional provision affecting simply property rights may be Avaived by the citizen. — Lee v. Tillotson, 35 Am. Dec. 624; Coley’s Con. Lim. (7th Ed.) 250. Whether the facts set up by the fourth and fifth pleas be called a “waiver or ah estoppel,” we are of opinion they constitute a defense to the bill, and that the chancellor erred in holding them insufficient.
The sixth plea proceeds upon the theory that having the poAver to grade and pave streets, the absence of negligence in and about the Avorlc Avould. defeat the right of the complainant to have the street restored to its former condition. It is not upon the rvant of power to gradé, nor upon the existence of negligence, that thé equity of the bill rests. It rests upon the constitutional guaranty to the citizen against the- taking or injuring of his property Avithout prior compensation. .The sixth plea was insufficient, and the chancellor’s decree to that effect Avas not erroneous.
Affirmed in part, mrersed and rendered in part, and remanded.
Rehearing
(On rehearing.) — I do not construe the averments of the hill as resting the equity sought to be enforced upon, an injury to complainant’s interest in the avenue or street, but to his storehouse and lot abutting thereon. It is undoubtedly tlie Iuav that the city has the legal right to change the grade of the street without compensation to adjoining lot.oAArners if there be no injury done to their property. In other Avords, an adjoining lot OAvner on a street lias no such property interest in the street as entitles him to compensation for a change in the grade of the street by the city. As said in City Council v. Townsend, 84 Ala. 486, 4 South. 780, it is “both, the privilege and duty of a city government to so grade the streets or change their grade as to make them safe and convenient, and this power is conclusively presumed to haAre been' conferred AAtben the dedication was .made.” But in the exercise of this privilge and duty, if tlie property of ah abutting OAvner is or Avill be injured thereby, clearly under our constitutional provision and adjudged cases he may restrain the further prosecution of the improvement' of the street by tbe city until just compensation is paid to him for the injury done or about to be done to his abutting property.
It may be that tbe eleventh paragraph of the bill is susceptible of the construction that complainant bases his relief to some extent upon his supposed property right in the avenue, but it is also clearly susceptible of the construction that his right is predicated upon his property interest in his storehouse and lot (and not in
It is true the opinion does not exclude complainant’s right to relief on account of his supposed property rights in the avenue. And its failure to do this coupled with certain expressions contained in it is calculated to lead to the conclusion that such a right exists. But this misleading tendency is overcome, I think, when we consider its entire context. My concurrence in the conclusion reached on this point, I wish to be understood, was upon the proposition .that the equity of the bill is based upon complainant’s right to compensation for the injury done his property abutting on the avenue, and not upon an injury to his supposed property interest in the avenue itself.
The other. questions raised on the record are sufficiently clearly dealt with, so there is no need of discussing them further.