First National Bank v. Tyson , 144 Ala. 457 ( 1905 )

DENSON, J.

A. P. Tyson and the First National Bank of Montgomery owned adjacent lots on the east side of Commerce street, in the city of Montgomery. Tyson’s lot was designated ias No. 12, and that of the bank as No. 14. Each of the lots abutted the street on its east side. Tyson’s lot was south of the bank’s lot, and on it he had a. three-story brick building. The bank proposed to erect on its lot a six-story building of brick and stone, with four stone columns in front of the building which would project onto the sidewalk from 22 to 26 inches from the building line of the street. Tyson filed the bill in this case to enjoin the bank from erecting the columns, upon the ground that the same:, if erected, would be a public nuisance, which would result in special injury to him as an adjacent property owner, in a way different from the injury that would result from the nuisance to the public. A temporary injunction vvas granted. The defendant answered the bill, incorporating in its answer a demurrer to the bill, filed three special pleas, and moved to discharge and dissolve the injunction. From a decree of the chancellor overruling the demurrer and the motion to discharge and dissolve the injunction, and sustaining exceptions to the special pleas, an appeal was prosecuted by the bank to this court. On that appeal the decree of the chancellor was in all things affirmed in an opinion handed down bv Mr. Justice Haralson. We refer to the report of the case as it appears in 133 Ala. at page 459, 32 South. at page 144, 59 L. R. A. 399, 91 Am. St. Rep. 46, for a full statement, of the pleadings.

Thé averments of the bill with respect of the injury to the defendant is as follows: “That said encroachment upon said highway is a public nuisance, not only infringing on the rights of the commonwealth of Alabama, but, if same are completed and placed in position as now contemplated by the First National Bank, said encroachment will greatly damage your orator beyond that which is common to the public generally, by injuring and depreciating the value of your orator’s property, and by destroying the symmetry of your orator’s building along the highway, which is valuable, and by obstructing the light, air, and view necessarily ensuing therefrom, and by depreciating the value of your orator’s property, in that the view of persons going south along said highway north of your orator’s building, will be shut off from your orator’s building. Your orator further avers that the tenants now in said building are valuable tenants-, and your orator is desirous of keeping them as tenants, but some of them have informed the orator that- if said stone columns encroach on said highway, or any part of said building of said the First National Bank encroaches on said highway, they will no longer remain tenants of your orator.” Upon the return of the case to the city court much evidence was taken on both sides, and on the final hearing of the cause on the pleadings and proof the chancellor, on the 4th day of January, 1904, rendered a decree perpetually enjoining the defendant from erecting the stone columns in front of its building. From the decree the defendant has appealed.

The right to relief in the case rests primarily upon the allegation in the bill that the erection of the. stone columns on the street or sidewalk would be a public nuisance. Without repeating the evidence, we think it reasonably established the fact that the columns, which were 22 inches in diameter at the bottom and tapering to 18 inches at the top, resting on bases 24 inches in diameter and extending upwards the height of the first story, would, when erected, extend beyond the building line of the street 22 to 26 inches. Commerce street is conceded to be a public highway, acquired by dedication. “Public highways belong, from side to side and end to end, to the public. There is no such thing as a rightful, private, permanent use of a public highway. If one person can permanently use the highway for his private business purposes, so may all. Once the right is granted, there can be no distinction made, no line drawn. All persons may build their shops, exhibit and sell their wares, within the boundaries of the public highway. There is no right in any person to permanently appropriate to private use any part of a public street or sidewalk. The person who uses a public highway commits an indictable public nuisance, notwithstanding it may be so used with the permission of the municipal authorities.”' — Costello’s Case, 108 Ala. 45, 18 South. 820, 35 L. R. A. 303; Douglass v. City Council of Montgomery, 118 Ala. 599, 24 South. 745, 43 L. R. A. 376; First National Bank v. Tyson, 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; State v. Berdetta, 38 Am. Rep. 117; Callanan v. Gilman, (N. Y.) 1 Am. St. Rep. 840; Van. Witsen v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403, 406; State v. Kean, 69 N. H. 122, 45 Atl. 256, 48 L. R. A. 102. So it-was held on the former appeal in this cause “that the erection of the proposed pillars by defendant in front of its building on the street, and which are to extend, as admitted, 22 inches beyond the west line of said building onto the sidewalk, is a public nuisance, to abate which the public might maintain a bill.” — First Nat. Bank v. Tyson, supra.

It is well-settled law that an individual who has sustained any particular special injury, over and above that sustained by the public generally, as the direct result of a public nuisance, may maintain a bill to enjoin it. — Tyson’s Case, supra; Cabbell v. Williams, 127 Ala. 320, 28 South. 405; Mayor v. Rodgers, 10 Ala. 36. It may be conceded that the evidence failed to show any special injury to the complainant, except with respect to the easment of view or prospect. The chancellor in his opinion seems to have taken this view of the case. He decreed a perpetual injunction against the erection of the columns of tihe defendant on the ground stated in his opinion, that the complainant’s right of view was interrupted. On the former appeal, as on this one, the appellant denied the complainant’s right to view, except to that part of the street immediately in front of his property. This contention is bottomed upon the theory that as an abutting owner defendant held the fee to the middle, of the street out from his lot. Notwithstanding the ultimate fee may he vested in the bank in its lot to the center of the street, it is subject to the public easment, and this confers on the complainant, as owner of abutting, adjacent property, the right to prevent or redress an obstruction or perversion of the street to thq private uses of the defendant inconsistent with the rights of the public, where special injury would result to him. — Evans v. S. & W. Ry. Co., 90 Ala. on page 58, 7 South. at page 759. The contention might be, and doubtless would be, tenable as between adjacent property owners of private property, where the view insisted on was across private property; but it is entirely inconsistent with the fundamental idea of a. street, that it is not only public, but public in all its parts, not only for the movement of men and things on it, but the easment of light, air, and view. — 2 Dillon on Municipal Corp. (2nd Ed.) § 541. The cases cited by appellant’s counsel relate to private property. But, as touching this question, it is deemed unnecessary to reopen the discussion. We held on the former appeal, in substance, “that an easement of view from every part of a public street, like the easement of light and air, is a valuable right- of Avhich the owner of a building on the street, should not be deprived by an encroachment on the highway by an adjacent proprietor; that the right of view or prospect is one implied, like other rights, from the dedication of the street to public use.” And, repeating here a part of the opinion of the chancellor: “It seems to be a valuable right appurtenant to the ownership of land abutting on the highway, and to stand upon the same footing, as to reason, with the easment of motion, light and air, and to be inferior to them only in point of convenience or necessity, and that the interference with it is inconsistent with the public right acquired by dedication.” — First Nat. Bank v. Tyson, supra.

After a careful consideration, we have discoA^ered no reason for departing from the law as it was ruled on the former appeal. With respect to the easement, of view we concur with the chancellor that it was established. The evidence showed that the columns, when erected by the defendant, Avculd extend 22 to 26 inches beyond the building line of the street onto the sidewalk. This fact being established, it is manifest that complainant’s view would be obstructed, and, as stated in the opinion of the chancellor, “this in turn necessarily imparts special injury to the complainant.” It may be conceded for argument’s sake that no actual damage was proved; but, as was said by us on the 'former appeal, quoting approvingly from Elliott on Roads: “And the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere in cases where the nuisance is a continuous one.” — Tyson’s Case, supra; Elliott on Roads & Streets, § 665; Ogletree v. McQuaggs, 67 Ala. 580, 42 Am. Rep. 112; Dennis v. M. & M. Ry. Co., 137 Ala. 649, 35 South. 30, 97 Am. St. Rep. 69. As was said by the Supreme Court of Indiana, “the existence of a permanent obstruction in a highway is clearly such an unlawful act as injures the citizens who are lot owners on the street, and who have a right, as an essential incident to the enjoyment of their property, to have the street maintained its full width, free from all obstructions of a permanent character. This is such a right as may be vindicated either by injunction or by indictment, and its violation is established by proof of a permanent encroachment upon the street.” — State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Pettis v. Johnson, 56 Ind. 139; Smith v. State, 23 N. J. Law, 712; Wood on Nuisance, § 252; Costello’s Case, 108 Ala. at top of page 49, 18 South, at page 821, 35 L. R. A. 303.

It is obvious that, if complainant’s right of view will be obstructed by the erection of the columns as a permanent obstruction on the street, this would be a particular, special injury, over and above that sustained by the public generally, as the direct result of such obstruction. Either the right of view by a person from his building, or his right to have the sidewalk remain free of permanent obstructions, so that his building may be in view of pedestrians on the sidewalk, is a substantial, legal right, and an unlawful deprivation of a substantial legal right necessarily implies injury to the party so deprived. We have not lost sight of the additional brief filed by counsel for .appellant on the question of right of view; but -we tliink what has been said in this opinion, together with the opinion on the former appeal, is an answer to it. Moreover, the right of view is not rested alone on the right of the complainant to have the highway remain unobstructed, SO' that people going south may have a view of this building, but also upon the right of view from the building.

It is insisted that there was a material and fatal variance between the case as pleaded and the proof, in that the bill averred several grounds of special damages or injury to the complainant, while the proof showed that only one ground was sustained. The basic fact alleged in the bill as constituting the complainant’s right to relief was the public nuisance which the defendant proposed to maintain on the street. Confessedly to entitle the complainant to relief, he must allege and prove special injury to him over and above that suffered by the public in general. This averment of special injury, it is obvious, was an averment of the results which flowed, or would flow, from-the act of which the complainant complained, and not the act itself. The pleader averred one cause, but several results which flowed from that cause, and which intensified, without varying, the relief claimed. The cause was proved, but only one of the averred results Avas proved, is the insistence. The cases cited by the appellant in support of its insistence are cases at laAV in Avhich the complainant charged that several acts of negligence were concurrent co-operating causes, and that all of them together contributed to the alleged hijury, and cases where pleas were filed in answer to the complaint set up different defenses in the conjunctive form. — Highland Avenue & B. R. o. v. Dusenberry, 94 Ala. 416, 417, 10 South. 274; Bienville Water Co. v. City of Mobile, 125 Ala. 183, 27 South. 781. We think the case at bar, on this point, falls directly within the rule, laid down in the case of Nobles v. Moses Bros., 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175, that, “when a. bill sets forth sufficient facts to entitle a compalinant to relief, the pleader may or may not, at his option, aver additional cumulative facts, which only intensify, without varying, the principle of relief claimed. The issue upon which the court- granted relief was explicitly, set forth in the .bill, and both sides submitted evidence upon it. Certainly it cannot be said that the appellant avus not apprised of the issue upon AAdiich the decree was based. If not, then Avliy should relief be Avithheld because all the special injury alleged may not have been proved?” Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447, 32 L. Ed. 878.

After due consideration of the Avhole case on the pleadings and the proof, Ave are of the opinion that the city court property granted the relief to the complainant, and its decree will be affirmed.

Affirmed.

Dowdell, Simpson and Anderson, JJ., concur.