City of Demopolis v. Webb , 87 Ala. 659 ( 1888 )

SOMERVILLE, J.

The bill is filed by the City of Demopolis, a municipal corporation, to restrain the continuance of a fence erected by John 0-. Webb, one of the defendants, across Arch street, a highway in said town, said obstruction being alleged to be a public nuisance, and sought to be abated as such. The bill further seeks to restrain the alleged unlawful collection of wharfage by the said Webb and his co-defendants, at a steam-boat landing on the margin of the Tombigby river, which is averred to be an appropriation of a part of said street, and an obstruction to tbe free use of said landing by tbe public. Tbe bigbway in question— called Arcb street — is alleged to be on tbe east margin of tbe river, running north and south, and extending from tbe low-water mark to tbe lots on tbe west side of tbe street, which are marked out and numbered on tbe map of tbe city. Said street is also designated on this map, and is alleged to have been duly dedicated to tbe public use.

There was a demurrer to tbe bill, some grounds of which were sustained, and others overruled. Tbe case comes before us on cross-appeals by both tbe complainant and tbe defendants. We have been greatly enlightened in tbe investigation of this case by tbe able arguments of counsel, in which great research is displayed.

It is objected, among other things, that tbe allegations of tbe bill fail to show that Arcb street was ever laid off, or opened as a street, and in use as such prior to tbe alleged obstruction. In answer to this we may observe, that tbe bill alleges with sufficient certainty a dedication of tbe street to tbe public use, and tbe acceptance of such dedication by tbe city authorities; and tbe defendants occupy an attitude which estops them from denying th6 existence of this street as a municipal bigbway. The dedication itself was made by tbe owners of tbe soil, in tbe clearest and most unmistakable manner, by surveying and mapping out a town, under tbe name of the town of Demopolis. This town they laid off into streets, blocks and lots, naming the streets, and numbering tbe lots, by marking them on this map or plat. Among these recognized highways was Arcb street, tbe one here in controversy. Tbe lots in said town were all described and sold with reference to this plat, including certain lots occupied by tbe defendant Webb, adjacent to, or fronting on Arch street, upon which a ware-house has been constructed by tbe proprietors, bis co-defendants, from whom said Webb rents the premises. Improvements have been made, and a town built up with reference to this plat, and upon tbe faith of an implied covenant on tbe part of tbe dedicators that tbe higN ways and streets described shall always remain open for public use. “It may be stated as a general rule,” as observed in a recent leading case, “that where tbe owner of urban property, who has laid it off into lots, with streets, avenues and alleys intersecting tbe same, sells bis lots with reference to a plat in which tbe same is so laid off; or where, there being a city map on which this land is so laid off, he adopts such map by reference thereto, his acts will amount to a dedication of the designed streets, avenues and alleys to the public.”—M. E. Church v. Mayor of Hoboken, 33 N. J. Law, 13; s. c., 97 Amer. Dec. 696. Under all the authorities, and upon every sound principle, this was a dedication of Arch street, as described on the map.—City of Dubuque v. Maloney, 9 Iowa ,451; s. c., 74 Amer. Dec. 358; Cincinnati v. White, 6 Pet. 431; Godfrey v. City of Alton, 12 Ill. 29; s. c., 152 Amer. Dec. 476; Gardner v. Tisdale, 60 Amer. Dec. 407; Angell on Highways, sec. 149.

The acceptance of the dedication by the public is sufficiently alleged. The act of the General Assembly of Alabama, approved December 15th, 1821, incorporating the town of Demopolis, provided, that “all the tract of land included in the plan of said tot on be, and is hereby, declared to be the limits of the same in conformity to said plan.” Toulmin’s Dig. p. 837. This was an adoption of the plan, or map, as part of the charter, with its streets there marked out and dedicated; and the acceptance of the charter operated, ipso fado, as an acceptance of such dedication, without further action on the part of the municipal authorities. — Requa v. City of Rochester, 45 N. Y. 129. The bill, moreover, alleges the actual use by the public, for over twenty years, of portions of Arch street near the two steamboat landings, in or adjacent to this street on the river margin.

But, as we have said, the defendants are in no situation to assert the non-existence of Arch street as a dedicated and accepted highway. They claim title to their lots by mesneconveyances running back to the original dedicators and proprietors — the same source through which the complainant derives its title to the street in controversy. In these conveyances, the lots on which the ware-house property is situated are described with reference to the original map or plat of the town, and stated to be bounded on the north by Arch street and Washington street. This estops the defendants from denying that Arch street is a public highway, having potential existence, whether actually opened or not. The case of Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348; s. c., 34 Amer. Rep. 652, is an authority in support of this view. There, a riparian owner platted his land into streets, lots and squares, one of the streets being below high-water mark, and under tide-water at the time of dedication, having been subsequently reclaimed by filling out the uplands. It was closed by the owners of the adjoining lots, through the erection of a fence across the street. A bill was sustained to remove this obstruction as a nuisance. To the suggestion of the respondents that the street was never lawfully created, but existed only on paper, because the land over which it ran was overflowed by tidewater, the court answered: “Though it may be true that the way or street had no actual existence when the conveyance under which it is claimed was made, we think it had nevertheless what may be called a potential, or prospective existence, which would become actual whenever the place for it should be filled and incorporated with the upland; and though the conveyances, when executed, may have been ineffectual to create- the way or street, because the site of it was flowed by tide-water, yet we think they were binding by way of estoppel on parties and privies, so that, in equity, at least, the said parties and privies could not refuse to allow the way or street as soon as the land designated for it became capable of supporting it. The ground of the estoppel,” said the court, “is, that the easements and servitudes indicated by the plat constitute a part of the consideration for which all the conveyances referring to the plat were made; and therefore no person, while claiming under the conveyances, can be permitted to repudiate them, or to deny that they exist where they are capable of existing.” We fully indorse this view of the law, as sustained both by reason and authority. —City of Dubuque v. Maloney, 74 Amer. Dec. 358; Godfrey v. City of Alton, 52 Amer. Dec. 476; Van O'Linda v. Lothrop, 21 Pick. 292; s. c., 32 Amer. Dec. 261.

It follows, we repeat, from this principle, that it is immaterial whether the street in question had been opened and used all its length through or not. The defendants purchased their lots in full recognition of its existence as a public street, or municipal highway, liable to be opened and used as such whenever the growing demands of an increased population and commerce might require it. They are es-topped now to deny to it this character, upon the plainest principles of justice and right.

It is well settled, that a fence, or other like obstruction, erected across a street is a public nuisance; and it may be such although the obstruction is created under an accompanying claim of title to the soil. A right of action at law will lie for its maintenance, in favor of any one who may sustain from it a special or particular injury. For such nuisance an indictment will also lie, and any private person aggrieved by it may rightfully abate it by removal. —Stetson v. Faxon, 31 Amer. Dec. 123, and note p. 132; Davis v. Mayor of New York, 67 Amer. Dec. 186, note p. 203; Harrower v. Ritson, 37 Barb. (N. Y.) 303; Milarky v. Foster, 25 Amer. Rep. 531.

Chancery, however, will often assume jurisdiction to abate such a nuisance, by preventing its continuance through the aid of an injunction, where the fact of its existence is undoubted. This will be done, either on the ground of the irreparable nature of the injury, or to prevent a multiplicity of suits liable to be occasioned by its repetition or continuance, or other grounds which render the remedy at law inadequate. The disturbance of easements, existing or threatened, will especially be restrained with much favor. — 3 Pom. Eq. Jur. §§ 1350-1351. Acting on these principles, this court in State v. Mayor & Aldermen of Mobile, 5 Port. 279; s. c., 30 Amer. Dec. 564, (1837) authorized an injunction to issue, restraining the erection of a market-house in one of the public streets of the city of Mobile, which was pronounced to be such an obstruction in the highway as to constitute a nuisance. A like jurisdiction exists to abate a nuisance already created, the remedy at law being inadequate, on the ground that one action, or even several, may not be sufficient to redress the plaintiff’s grievances, by reason of the continuous nature of the injury. An appeal to the Chancery Court, moreover, is a more orderly method of settling such disputes, being less apt to lead to breaches of the peace, than the dangerous attempt to redress one’s rights by taking the law in one’s own hands. —Town of Burlington v. Schwarzman, 52 Amer. Rep. 571; Hoole v. Attorney-General, 22 Ala. 190; Providence Steam Engine Co. v. Providence Steamship Co., 34 Amer. Rep. 652; Dumesnil v. Dupont, 68 Amer. Dec. 750.

That the city of Demopolis has the right to bring this suit is, in our judgment, clear, on both authority and principles of.reason. Such jurisdiction was recognized and asserted long ago, by the English Court of Chancery, in Mayor &c. London v. Bolt, 5 Ves. 129, where an injunction was granted on the application of the corporate authorities of the city of London, to prevent a nuisance which threatened to be dangerous to the lives of the citizens.

In Trustees of Village of Watertown v. Cowen, 4 Paige Ch. 510; s. c., 27 Amer. Dec. 80, it was decided that the village of Watertown, in its corporate capacity, was so far the representative of the equitable rights of the inhabitants, as to authorize the filing of a bill in its name to restrain the erection of buildings on a public square, which were declared to be a public nuisance, and liable to be abated as such,

So, it was held in Town of Burlington v. Schwarzman, 52 Conn. 181; s. c., 52 Amer. Rep. 571, that one who unlawfully erects a fence across a public street in a town, and threatens to maintain it, could be restrained by injunction at the suit of the town. The court, among other reasons, thought that the liability of the town to pay damages, in case of a person being injured by the obstruction, a sufficient interest to enable it to appear as plaintiff in a complaint in equity to prevent the threatened destruction. An equally good reason is found in the power and duty to prevent and remove nuisances, and to keep a general control of, and supervision over all municipal highways, as incidental to the right to repair and improve streets, to say nothing of the express power in the city charter “to open all streets as laid down on the maps of said city.”—City Charter, Acts 1872-73, pp. 305, 310-311, § 19; M. E. Church v. Mayor of Hoboken, 97 Amer. Dec. 698; note, 707; Inhabitants of Greenwich v. E. & A. R. R. Co., 21 N. J. Eq. 221. There would be a great defect of justice, if the governing authorities of a town or city, charged as trustees with the duty of protecting the public rights, were compelled to sit still with hands tied, and witness the unlawful appropriation of the municipal highways to private use, without any power to prevent so monstrous an evil.

Mr. Pomeroy, discussing the subject of public nuisances, observes: “A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney-General in England, and at the suit of the State, or the people, or municipality, or some proper officer representing the Commonwealth, in this country.” 3 Pom. Eq. Jur. § 1319. See, also, 2 Dillon Mun. Corp. (3d Ed.), § 659; 1 High on Inj. (2d Ed.), §§ 768, 769.

It is peculiarly appropriate, in our judgment, that this jurisdiction should be asserted in this age and country at the suit of towns and cities, as it 'harmonizes with the modern American theory of remitting the governmental management of local affairs, as far as convenient and practicable, to the local authorities. For, as said by a learned judge, “the law is made for the times, and will be made or modified by them.” — Lex. & Ohio R. R. Co. v. Applegate, 8 Dana, 289; s. c., 33 Amer. Dec. 197.

It is needless to add, that the action of ejectment for a highway, by a municipality, even if the right be admitted to exist, as held by some authorities, is not a complete and adequate remedy in a case of this nature.

This suit, we hold, was properly brought in the corporate name of the City of Demopolis.

There is another feature of the bill, in addition to its purpose to abate the nuisance of obstructing Arch street by a fence erected across it. The further theory of the bill, if we correctly interpret it, is, that the collecting of wharfage at the lower river landing, by the defendant Webb, is an obstruction of the rights of the public in Arch street, which is alleged to run to the low-water mark on the river, and, therefore, to embrace the landing itself. It is argued, that the exercise of this right to collect wharfage is a franchise, and being without authority of law, it is an obstruction to the free use of Arch street, and as such is in the nature of a public nuisance.

Does the bill sufficiently negative the right of the defendants to collect wharfage, either in connection with their warehouse business, or by authority of the original proprietors of the soil, who dedicated Arch street to the public ?

The defendants, as owners of the warehouse lots or property, to the south and east of Arch street, it may be admitted, can claim no right to collect wharfage as riparian owners. These lots are described as bounded by Arch street, and this street lies between these lots and the river, extending, as we have said, to the low-water mark. As owners of' these attingent lots, therefore, in the absence of any statute to the contrary, the defendants by their deed became the grantees and owners of the ultimate fee only to the center of the street, not to the margin of the river, subject, of course, to the existing easement created by the dedication of the street. —C. & W. Railway v. Witherow, 82 Ala. 190, and cases cited on p. 195. Riparian rights can only attach to the ownership of land which is bounded by a navigable stream, or, in other words, which abuts on the margin of the river. —Yates v. Milwaukee, 10 Wall. 497; Gould on Waters, sec. 148, p. 271. When, therefore, a street is bounded on one side by a navigable river, the ownership of lots on the other side running to the center, the fee of the half of the street bounded by the river presumptively remains in the original proprietor, subject to the public easement. — Banks v. Ogden, 2 Wall. 57; Municipality, &c. v. Cotton Press, 36 Amer. Dec. 624. This is upon the principle, that a dedication, unaided by statute, docs not pass the fee or legal title, but only an easement or right of way to the public, with such incidental privileges and powers of control as may be necessary to make it effective. — Forney v. Calhoun County, 84 Ala. 215; Williams v. New York Cent. R. R. Co., 69 Amer. Dec. 651. As the owner of the fee or soil, he retains all property rights in it, incidental to ownership, which do not interfere with the use of the street for all reasonable purposes for which it may be needed by the public, and not incompatible with its improvement or development as required by the growth of the town or city of which it is the highway. — Robert v. Sadler, 104 N. Y. 229; s. c., 58 Amer. Rep. 498, 501, note; Municipality, &c. v Cotton Press, 36 Amer. Dec. 624; Lorman v. Benson, 8 Mich. 18; Providence Steam-Engine Co. v. Providence Steamship Co., 12 R. I. 348; s. c., 34 Amer. Rep. 652, 661.

The right to collect wharfage may exist in either of two ways: (1) It may exist as a franchise conferred by legislative grant (Lansing v. Smith, 21 Amer. Dec. 89); or (2) it may exist as an incident to the ownership of land abutting on a navigable river, being a riparian right of the proprietor, and as such a right of property, subject, of course, to reasonable legislative regulation. —Murphy v. City Council of Montgomery, 11 Ala. 586; Dutton v. Strong, 1 Black (U. S.) 23; Baltimore & Ohio R. R. Co. v. Chase, 43 Md. 23; Providence Steam Engine Co. v. Providence Steamship Co., 34 Amer. Rep. 652, 666; Ball v. Slack, 2 Whart. 508; s. c., 30 Amer. Dec. 279. It was declared in the Constitution of 1868 (Art. I, § 26), and is repeated in Article I, § 26, of our present State Constitution, “that all navigable waters shall remain forever public highways, free to the citizens of the State, and of the United States, without tax, impost, or toll imposed; and that no tax, toll, impost or wharfage shall be demanded or received from the owner of any merchandise or commodity, for the use of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same is expressly authorized by the General Assembly.” — Const. 1875, Art. I, § 26. We are called on to decide what effect this clause of the Constitution will exert on the rights of the parties defendant to this suit. It is not contended that the complainant, the city of Demopolis, is invested with any legal authority to conduct the business of wharfing on its own account; and without such, authority conferred by charter, it can not be exercised. —Mayor of Mobile v. Moog, 53 Ala. 561. The contention is, that the dedication of Arch street was a dedication of that portion of it including the wharf, and that the exercise of the right of wharfage interferes with the easement of the public in the street, and being unlawful, because without express authority of law, the continuance of the business should be enjoined.

There may no doubt be a dedication of a public landing, or a wharf, as well as of a street, to the public use, if the intention of the proprietor to part with his property is made clear and unequivocal. — Godfrey v. City of Alton, 52 Amer. Dec. 476. Under our decisions, when a person owns land on a navigable river, his ownership is held to extend so far as to embrace the land between high and low-water marks. Williams v. Glover, 66 Ala. 189. But a landing, or wharf, may be private property, and the public be permitted to use it by license, or for a charge.—O'Neill v. Annett, 3 Dutch. 291; s. c., 72 Amer. Dec. 364. “The result of the authorities,” says Mr. Gould in his treatise on Waters, “seems to be, that a dedication of land adjoining a river, for the purpose of public passage to and from the water, with, perhaps, the incidental right of temporary deposit, or a claim of prescriptive user, for the purpose of landing and embarkation, is valid; but that the right to incumber the land with lumber, merchandise, and the like, to a greater extent, or for a longer time, than would be permissible in a highway, is neither within the purpose of the dedication, nor valid as a custom.” —Gould on Waters, § 105, p. 193.

In this aspect of the law, there are several defects in the bill fatal to its equity as a bill to enjoin the continuance of the wharfage business. (1.) There is no clear and unqualified averment in the bill, that the landing, or right of wharfage, was dedicated to the public, as well as the street. The very reverse is inferable from the statement, that the upper landing, as to which there is no controversy, wms public and free. The lower landing, the only one in controversy, is alleged to have been public, which is not inconsistent with its permissive use by the proprietor as auxiliary to his own business, or for a charge of toll. — Gage v. M. & O. R. R. Co., 84 Ala. 224. (2.) It is not alleged that the right of the public to an easement in Arch street — the right to pass and re-pass, to open and repair the street, or other privilege of improvement or user — is interfered with in any manner by the wharfing business. (3.) The bill does not negative the fact, that the defendants are exercising, by privity of contract with the original proprietors, the right which may have existed in them to construct a wharf, and charge tolls at this landing. This, as we have said, was a property right incident to the ownership of the fee. If it existed prior to the enactment of the Constitution of 1868, and was not abandoned by dedication to the public so as to make it free, it could not be taken away by legislative enactment, without compensation to the owner. — Municipality, &c. v. Cotton Press, 36 Amer. Dec. 624. It is not made to appear, therefore, that the constitutional provision in question has abrogated the right of the original proprietor, or his assigns, to conduct the wharfing business, here sought to be enjoined. It may be observed, moreover, that the wharf itself is not shown to be constructed so as to injure the navigation of the river, or otherwise render it a public nuisance by preventing convenient access through the street. — Lansing v. Smith, 21 Amer. Dec. 89; 1 Dill. Mun. Corp., § 106; Dutton v. Strong, 1 Black, 23.

As to the question of parties. We think the chancellor correctly decided, that the only proper party defendant to the present'suit was John C. Webb. The bill has equity only, in the present state of its averments, as one to abate the erection of a fence as a nuisance. This is charged to have been done by John C. Webb alone. The other defendants are not shown to have authorized, or participated in it, and are in nowise connected with it.

It follows frum the above principles, that the rulings of the chancellor on the demurrer were correct, and his decree is in all respects affirmed. The costs of the two appeals will be equally divided between the appellant and the appellees.

Affirmed.