Sloss-Sheffield Steel & Iron Co. v. Johnson , 147 Ala. 384 ( 1906 )

TYSON, J.

This is the case of a bill filed by the appellee to abate .a public and private nuisance arising from obstructing streets in the city of Birmingham by dumping therein slag from a furnace. The appellant demurred to the bill, and, the demurrer being overruled, this appeal is prosecuted to reverse the decree of the lower court.

The complainant is the owner of a.block of city property, which, it seems, is east of the alleged obstructions placed in the streets by the appellant; and the allegation making out the public nuisance is that the streets are, and long have been, dedicated to public uses as highways, and that the appellant.by dumping slag therein totally obstructs the use thereof. The allegation, to give the appellee a standing in court to have this public nuisance abated, is that he is the owner of the property, an entire square, in the vicinity, and that the obstructed highways are streets leading from his property to the city of Birmingham and are the direct way far travel, and that by the obstructions he is deprived of the use of this direct route and is compelled to take a circuitous one in to other streets to the north or south of the obstructions. It is conceded that the facts alleged make out a public nuisance, and the only point at issue is whether they show such,a peculiar injury to the complainant below as to give him a. standing in court.

The general mile is that a private individual, who suffers no damage different from that sustained by the public a.t large, has no standing in court for the abatement of a public nuisance; but, if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have the same abated if the remedy at law is inadequate. — Rosser v. Randolph, 7 Port. 238, 31 Am. Dec. 712; Columbus v. Whiterow, 82 Ala. 190, 3 South. 23; Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.) 91, 9 L. Ed. 1012; 3 Notes U. S. Rep. 710; State of Penn. v. Wheeling B. Co., 13 How. (U. S.) 518-564, 14 L. Ed. 249; In re Debs, 158 U. S. 587 et seq., 15 Sup. Ct. 900, 39 L. Ed. 1092; Jones v. Bright, 140 Ala. 268, 37 South. 79. This proposition is not denied, but it is insisted that no special damage is shown in this case to the complainant below, and that if such damage is shown the remedy at law is adequate in a suit for damages. As to special damages, the rule is that the injury, to be special, must be one different in kind, and not mere degree, from that suffered by the general public from the act complained of. — Bigley v. Nunan, 53 Cal. 403; Crowley v. Davis, 63 Cal. 461; Decker v. E. S. & N. R. R. Co., 133 Ind. 493, 33 N. E. 349; Gundlach v. Hamm, 62 Minn. 42, 64 N. W. 50; High on Inunctions, § 589.

The situation shown by the bill is that the nuisance is the obstruction of the two streets bounding the complainant’s block of land on the north and south, and extending directly into the city of Birmingham; the obstruction being two blocks distant in a westerly direction from complainant’s property, and compelling all. travel between his property .and the city to take a circuitous route north or south of the two obstructed streets'into other streets leading into the city, instead of pursuing the direct course along Second and Third avenues, which are the obstructed streets. So the question is Avhether forcing the owner of land out of his direct public street or road into a circuitous route in his commerce and intercourse with the outside Avorkl is a peculiar or special injury to him, not suffered by the general inhabitants of the state, county or city. — Spencer v. London & Birmingham Co., 8 Sim. 198. The statement of the proposition seems to give the affirmative answer to the inquiry. ■ If the direct and usual route of travel may be obstructed, there could certainly be no reason why the indirect routes might not also be closed one by one, until the unhiAvful and criminal invasion of' public roads put the unfortunate OAvner’s property in a cul-de-sac, compelling a. day’s time instead' of a feAAr moments of time, in going to business, church or market. An individual might be entirely inclosed, and the value of hi* property destroyed, without affecting the public. The injury is thus clearly individual and special. In the case of State of Penn. v. Wheeling Bridge Co., 13 How. (U. S.) 518, 14 L. Ed. 249, the state of Pennsylvania entirely as an individual filed its bill to abate the obstruction bv a bridge of a public waterway in the state of Virginia Avhich interfered with the general commerce and travel feeding its connecting railroads and canals; and after elaborate consideration relief Avas granted on the ground that the bridge, though a public, was also a private, nuisance, on account of the special injury to the complainant. There can be no question that the obstruction of a route of communication with the public community enjoyed by a property owner is a private or special injury, although it may be at the same time a public nuisance, entitling the injured party to appeal to a court of chancery for protection if tlie injurv is substantial, and the remedy at law is not adequate. — 13 How. (U. S.) 567, 14 L. Ed. 269; Jones v. Bright, 140 Ala. 268, 37 South. 79.

The only question, then, is whether or not the obstruction of the streets in this case could be fully and adequately remedied by an action at law for damages. This question seems to be precisely decided in the case of 13 How. 562, 14 L. Ed. 267, where the court, speaking of the obstruction of a public waterway changing the line of transportation over the complainant’s railroad and canals, says: “This injury is of a character for which an action, at law could afford no adequate redress. It is of daily occurrence, and would require numerous, if not daily, prosecutions for the wrong done; and from the nature of that wrong the compensation could not' be measured or ascertained with any degree of precision. The effect (of the injury) would be, if not to reduce the tolls on these lines of transportation, to prevent their intercourse with the increasing business of the country.” The obstruction of the streets in this instance is continuing, but may be temporary or permanent, and the injury to the complainant, whether embracing the present or prospective injury to his property, is entirely incapable of any precise measurement. These obstructions might direct the line of city development away from the plaintiff’s property. There is thus no full, adequate, and complete remedy open to the plaintiff for his individual injury, save in this court. — Roberts v. Mathews, 137 Ala. 523, 34 South. 624, 97 Am. St. Rep. 56; Cabbell v. Williams, 127 Ala. 320, 28 South. 405; Whaley v. Wilson, 112 Ala. 627, 20 South. 922; Jones v. Bright, 140 Ala. 268, 37 South. 79; City of Georgetown v. Alexandria Co., 12 Pet. (U. S.) 98, 9 L. Ed. 1012; State of Penn. v. W. B. Co., 13 How. (U. S.) 567, 14 L. Ed. 269; Stetson v. Faron, 31 Am. Dec. 123, and note; Sampson v. Smith, 8 Sim. 272; Spencer v. London & B. Co., 8 Sim. 193.

There ivas no error in the decree of the lower court, and therefore it is affirmed.

All of the justices concur, except Weakley, C. J., not sitting.