Sheffield & Tuscumbia Street Railway Co. v. Rand , 83 Ala. 294 ( 1887 )

STONE, C. J.

— These two cases are substantially alike in all their material facts.

Many years ago a town was laid off by survey, containing lots, streets, and a common. The streets and common were dedicated in the usual way; the lots were sold to private purchasers, the town built up, and it is now the incorporated city of Tuscumbia, having a municipal government with mayor and aldermen. Under an act of Congress, the town-site was selected before the sale of the public lands in that part of the State. The survey and sub-divisions of the land into lots, the location and dedication of the streets and common, and the sale of the lots, were done by commissioners appointed for the purpose. The original sale of the lots as town lots, was made by the Government of the United States. It is not shown for what special use or purpose the common was withheld from sale and dedicated; but it has remained an open, uninclosed common ever since, apparently without improvement, or ornamentation. It stretches across the northern part of the tract selected for the town-site, and extends to its northern boundary.

The lands adjoining the tract selected for the town-site were sold by the government to private purchasers, and the two complainants, Moore and Rand, own separate lots or parcels, extending to, and adjoining said town-site, on the northern boundary of the common. Whether the survey and sale of the lots, or the government sale of the lands owned by Moore and Rand, was prior in point of time, is not shown.

The corporation known as the Sheffield and Tuscumbia Railroad Company, jxroposing to construct and operate a dummy-line of railway from one place to the other, has obtained the consent of the city council of Tuscumbia, authorizing it to run its road across said common, and in front of said properties owned by Moore and Band. The charge is, that the route selected and graded runs across the common from east to west, on a line thirty or forty feet from, and south of the south boundary-line of said lots. It is averred that, in grading said part of its route, the.railroad corporation has changed the surface of the ground, by excavating a part of the distance,' and by an embankment over another part, so deep and high as to obstruct and hinder travel to and from the city, except by a circuitous and longer route.

The foregoing are, in substance, the averments of fact found in each of the bills.

On these averred facts, Moore and Band filed their separate bills against the railroad company and the city of Tuscumbia, praying that the former be enjoined from constructing its road on the bed as graded, and that it be required to restore the grade to its normal surface. Injunctions were awarded; and on demurrer, the chancellor, in his decretal order, refused to dissolve the injunctions, and left them of force. From those decretal orders the present appeals are prosecuted.

The theory of the bills, as disclosed in their averments, and in the arguments of counsel, is, that the lands of complainants being co-terminoús with the public common, they, like the owners of lots abutting on public streets or highways, have such right to, and ownership in the soil of the common, extending to its center, as authorizes them to become actors in a suit to prevent its use in such a manner as to hinder or obstruct access to, or egress from their ajacent properties. This doctrine does obtain in reference to public streets and highways. — C. & W. Railway Co. v. Witherow, 82 Ala. 190; 1 Wait’s Ac. & Def., 708-9; 8 Washb. Real Prop. (5th Ed.), 448 et saq.; Tiedman’s Real Prop. § 837; 3 Wait’s Ac. & Def. 6-7; Bradford v. Gressey, 45 Me. 9; Woodman v. Spencer, 54 N. H. 507; Warner v. Southworth, 6 Conn. 471; Perry v. N. O., M. & Chat R. R. Co., 55 Ala. 413; Washb. Easements, 112 et seq.

The rule, however, is entirely different, when applied to the ownership of land attingent to a public common. The purpose for which such dedication is made, the use or changing uses to which it may be applied, and many other distinguishing characteristics, demonstrate that neither the rule, nor the reason of the rule on which the law of the street or highway rests, can be made applicable to a public common. The differences will naturally suggest themselves, and we need not attempt their enumeration. The principles can be gathered from the subjoined authorities. Nor has the general public any right or authority over a public common. It is appurtenant, not to the general public, but to the community for whose use or enjoyment it was dedicated. It is appurtenant to residence, and to property-ownership within the territorial area, or within the city, town, village or hamlet, whose foundation or growth it was intended to promote. The lands, in whose right the servitude is claimed in these cases, not being shown to be within the city, nor within the area contemplated in the dedication, the complainants show no right whatever to maintain these suits. — 3 Bla. Com. 296; 3 Wait’s Ac. & Def., 704 et seq.; Ib. 121; 1 Washb. Real Prop. (5th Ed.), 49 et seq.; Washb. Easements, 676 et seq.; 3 Rent’s Com. 404; Tiedman’s Real Prop. §§ 592-3; Wellington v. Peters, 16 Pick. 87; Com. v. Rush, 14 Penn. St. 186; Langley v. Gallipolis, 2 Ohio St. 107; Comm'rs of Bath v. Boyd, 1 Ired. Law, 194; Rowan v. Town of Portland, 8 B. Morn. 233; Leftwitch v. Mayor, 14 La. An. 152; City of Winona v. Huff, 11 Min. 119; Anderson v. R., L. & N. R. R. Co., 9 How. Pr. Rep. 553.

The complainants show no greater right to use or easement in the common, than they could assert if it were a private estate, adjoining them in the same way. They coiild not object, if it were entirely closed.

A demurrer to a bill, or decree pro confesso, admits every material averment of fact that is well pleaded; but it does not admit the soundness of arguments, nor the legal conclusions that may be asserted by the pleader. — Lake v. Security Loan Asso., 72 Ala. 207; Flewellen v. Crane, 58 Ala. 627.

The decrees of the chancellor are reversed, and decrees here rendered, sustaining the demurrers to the bills for want of equity; and in the case of E. P. Rand, dissolving the injunction for the same reason. The decrees appealed from being interlocutory, the cases are still pending in the court below. This opinion will be certified to the Chancery Court, as a guide for further proceedings in that coui*t.

Reversed and remanded.