Southern Railway Co. v. Ables , 153 Ala. 523 ( 1907 )

ANDERSON, J.

— Conceding that the abutting owner of the street has such a private interest therein as would entitle him to compensation under section 235 of the Constitution of 1901, before a vacation thereof by the municipality, the complainant does not bring himself within the protection of said section, as the bill does not aver that he is an abutting 'owner on those particular parts of the street that were vacated. — Elliott on Roads & Streets (2d Ed.), §§ 877, 878; Dennis v. M. & M. R. R. Co., 137 Ala. 649, 35 South. 30, 97 Am. St. Rep. 69; Montgomery v. Townsend, 80 Ala. 489, 2 South. 155, 60 Am. Rep. 112; Decatur v. Karcher, 112 Ala. 676, 21 South. 825; Lewis on Em. Dom. § 134; Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Buhl v. Ft. Union R. R.} 98 Mich. 596, 57 N. W.- 829, 23 L. R. A. 392; Chicago v. Union Bldg. Association, 102 111. 379, 40 Am. Rep. 598; Fast St. Louis u. O’Flynn, 119 111. 200,10 N. E. 395, 59 Am. Rep. 795. The demurrer to the bill, testing the right to injunctive relief based upon the Constitution with respect to eminent domain, should have been sustained.

Nor does the bill make out a case for injunctive relief against a common law nuisance. The Legislature, by Acts 1890, p. 1310, authorized the city of Decatur to abandon and vacate the streets or any part thereof, and if the ordinance involved was in compliance with the law, and intended as a bona fide vacation by the municipality of certain parts of the streets in question, there could be no nuisance. “The plenary power of the Legislature over streets* and highAvays is such that it may, in the absence of special constitutional restrictions, vacate or discontinue them, or invest municipal corporations with this authority.” — Dillon, Municipal Corporations, 666; Elliott on Roads and Streets, 875; McCain v. State, 62 Ala. 138; Mayor of Birmingham v. Klein, 89 Ala. 465, 7 South. 386, 8 L. R. A. 369; City of Montgomery v. Parker, 114 Ala. 126, 21 South. 452, 62 Am. St. Rep. 95; McGee’s Appeal, 114 Pa. 470, 8 Atl. 237. On the other hand, conceding that the ordinance was not a bona fide vacation of certain parts of the streets, but was a mere effort on the part of the city to devote those parts of the streets to the use of the railway company, and was unauthorized (McCain’s Case, supra; Elliott on Roads and' Streets, 875; Smith v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393; Glasgow v. St. Louis, 87 Mo. 678), it could avail the complainant' nothing under the avennents of his bill.

The complainant would not be entitled to equitable relief, even if the ordinance was unauthorized and the vacation or obstruction amounted to a nuisance, without averment and proof that he will not only be damaged different in kind, as contradistinguished from degree, from the public generally, but that his damage will be of such a character as he cannot be compensated in a single action at law. The only damage charged in the bill is the diminution in value to complainant’s lots, and, while it may be greater in degree, it is not different from that sustained by the public generally. The bill claims no damages that cannot be measured and recovered in a single action at law. The bill does aver that complainant is in the hotel and saloon business and that these places will be less accessible to the public, but makes no claim for injury to his business, and grounds his damages solely and entirely upon a diminution to the value of his lots. — Dennis v. M. & M. R. R., supra, and cases there cited.

We agree with the chancellor in holding that the amendment did not add equity to the bill. The injury feared by the construction of the bridge is merely imaginary, and not even threatened at present. The contract provides that it is only to be constructed “if it becomes necessary,” and it may never become necessary. The amendment does not aver that it has become necessary, or that there is any attempt or intention to erect the bridge. “Sufficient unto the day is the evil thereof.”

Counsel for complainant, in brief upon application for rehearing, insists that the hill avers that complainant’s lots abut the vacated parts of the streets. We are not able to so construe the bill. We have carefully read and reread the same, and it strikes us as an attempt on the part of the pleader to place the property as near the vacated parts of the streets as possible, but to purposely avoid averring that it abuts at the points vacated.

The chancellor erred in not sustaining the demurrers to the bill, and a decree will be here rendered sustaining demurrers Nos. 11, 7, 5, and 3.

Reversed and rendered.

Tyson, C. J., and Haralson, Simpson, Denson, and McClellan, JJ., concur.