Baker v. Selma Street & Suburban Railway Co. , 135 Ala. 552 ( 1902 )

HARALSON, J.

It is not averred in the bill, or denied. that the defendant company was regularly and legally incorporated.

The demurrer to the bill as amended questions the ■complainants’ right to maintain it, on the ground that it does not appear that complainants or either of them will be damaged by the ponstruction and operation on Union street between Selma and Dallas streets, of defendant’s street railway, in any manner in which they have a right to complain.

The bill avers that part of Union street between Dallas and Selma streets is occupied solely for residences and dwellings; that that part of Union street is extremely narrow, to-wit, sixty feet; that the dwelling and residence of complainant, Joseph M. Baker, is near to the west side of said Union street, between said points, being about six feet from said street; that said house as it now stands, has stood for many years, to-wit, twenty years; that the stable of complainant, Mary Baker Parrish, is near said street, and her residence is, to-wit, about fifty feet from said street, and as it now stands, has stood for many years, to-wit, for twenty years; that the sidewalks on each side of said.street take up about 12 feet; that said company is proceeding* to erect poles near the edge of the sidewalks, from which wires, to operate the road, are to be strung, which “will materially obstruct said street as a highway for wagons, carriages, drays and other vehicles for which purpose it has been and is now used by the public, and thereby constitute a public nuisance in said street;” that the noise, dust and vibration caused by the running of the cars over and upon said street and the danger of injury and damage to property of complainant’s, in ingress and egress to and from their stables, out-houses and dwellings by the same, will render said property undesirable for residence or dwelling property, and will greatly diminish the value of the same in, to-wit, the sum of $5,000.” These seem to be conclusions of the pleader. Such objections have all been made the subject of judicial investigation and decision. Mr. Booth, in his' work on Street Railways, section 82, states the doctrine that .“A street surface passenger railway constructed at street grade in the usual manner and operated by animal power is not per so a. public or a private nuisance, nor is it a new* servitude imposed upon the land for which the owners of the fee are'entitled to compensation.” The same principle applies to such roads when operated by electricity. As to this, the author says: “After full consideration of the various objections raised to the use of electricity, every court of last resort to which the question has been submitted has held that the electric street railway does not constitute a new servitude, and that the use of this motive power when duly authorized does not entitle abutting owners to compensation.” — § 83; Joyce on Elec. Law, § 341. “Streets and highways,” says Mr. Joyce, section 278, “are dedicated to the use of the traveling public, and street railways, which are for the purpose of facilitating travel, impose no additional burden upon the abutting owner, and are a public use.” The same author, section 335, in speaking of the difference between horse and electric railways, says: “The following facts have been presented to the courts in various cases, for holding that electric street railways are an additional burden, — that poles and wires are erected in the streets, constituting an exclusive possession of the same, so far as the space occupied is concerned; that the wires are dangerous to the life and safety of the traveling public ; that loud and unpleasant noises result, such as the buzzing sound produced while the car is in motion, and by the sounding of the gong, and that on account of the speed of the car there is much more danger, than in horse street railways. * * * They are all doubtless true to some extent,” lie proceeds then to show, by the adjudications on the subject, that they are, so far as the right of the owner of the fee to complain is concerned, without merit, on the ground that such uses are no more than the drawing of any other vehicle on the streets. They all create noise, dust and vibrations, and are attended with some danger to life and property; but such uses are legitimate and within the original dedication of streets for the benefit of the public.—Joyce on Elec. Law, §§ 36-341; Birmingham T. Co. v. B. R. & E. Co., 119 Ala. 141, 142; Baker v. Selma St. & Sub. Railway, 130 Ala. 474.

In. the case of the Birmingham T. Co. v. B. R. & E. Co., supra, this court said: “It has been adjudicated with practical unanimity throughout the country for many years that street railways operated by horse power, though the cars were confined to fixed tracks built upon the surface of the street for their special use, were, so far as the right of the owner of the fee to complain was concerned, no more than the drawing of any other carriage or vehicle upon the streets, and were, therefore, legitimate uses of the streets, which the municipality was authorized to permit without violating any right of the owner of the fee. * * * The electric railways, such as we are now considering, are a comparatively recent development., yet, as is of common knowledge, they have practically superseded all systems of street railway enterprise (saving the cable systems in the larger cities), and their nature and modes of construction and operation, as affecting or not the legitimate use of streets within the implied contemplation of the dedication, have been subjects of frequent adjudications by court of last resort in this country; and it may be said that there is almost unanimity in the adjudications that such uses are legitimate uses of streets, by the permission of municipalities, without any right of the owner of the fee to compensation.” Many authorities are collated to support, the text.—Baker v. S. S. & S. R. Co., 130 Ala. 474.

The bill shows that the company had the consent and authority of the. municipality of the city to construct its line and operate its cars on Union street; and if it be conceded that the charter of the company did not designate that portion of said street between Selma and Dallas streets, upon which they propose to lay their track, erect poles and operate their line of road, the complainants suffered no injury of which they can complain.

If such alleged obstructions as complainants set up to enjoin the construction and operation of this road are held to be sufficient to that end, it would be difficult for any such line to be built and operated in any city or town.

To entitle the complainants to an injunction against. the construction and operation of this road, it ivas incumbent on them to show by averments that it would he a nuisance in fact, and that they would suffer special injury different in kind from that sustained by the general public.—1 High on Inj., §§ 762, 827, 828; First Nat. Bank v. Tyson, 133 Ala. 459; 32 So. Rep. 148.

If complainants suffer damage caused by improper construction or negligent, or unskillful operation of the road, they have their remedy, and defendant would be liable in damages. — Booth on Street Railways, § 97. The bill is obviously without equity, and we have been unable to discover wherein the court erred in sustaining the demurrer to it.

Affirmed.