Crofford v. Atlanta B. & A. R. R. , 158 Ala. 288 ( 1908 )

DOWDELL, J.

The only question which differentiates this case from that of Hall et al. v. Atlanta, Birmingham & Atlantic R. R. Co. et al., Infra, 48 South. 365, is the one relating to the easement of air, light, and view. Counsel for appellants in their brief say: “This case is very much like the case of John A. Hall et al. v. Atlanta, Birmingham & Atlantic Railroad Company et al., submitted with this case. In fact, the real facts in the two cases are practically the same; but the facts as shown by the two hills are different, in that the hill in this case is more elaborate, and sets out more fully the true statement of facts, and also this hill charges in positive terms the infringement of complainant’s easement in the avenues and alleys of light, air, and view. His bill also attacks the constitutionality of the act of the Legislature and the ordinance of the city of Bessemer by which the closing up of the alleys is sought to be justified, and the obstruction of the avenues.”

As to the constitutionality of the act of the Legislature and of the ordinance of the municipality referred to, this question was presented and passed on in the case of Hall et al., supra, and adversely to the contention of appellants. We do not understand that' there is any contention of a want of power on the part of the municipality, under the legislative grant of powers contained in the charter, to pass the ordinance in question; but the contention is that the ordinance is violative of section 235 of the Constitution of 1901, in so far as it authorizes the taking of private property for public use without first making just compensation for the property taken, injured, or destroyed, etc., as provided by law. It is admitted by the' bill that the viaduct being constructed over Berkley avenue was authorized by ordinance of the municipality, and it is not denied that the same is being constructed in conformity with said ordinance. The structure, therefore, being one authorized hv law, cannot be said to constitute a public nuisance. The bill shows that the viaduct arches said avenue overhead 30 feet, and that there is a passageway for public travel, left in the middle of the avenue under said arch, 30 feet wide. It is evident, from this, that the right of access of abutting property owners on said avenue to and from their property, is not, by reason of the viaduct, denied them. Moreover, we are of the opinion that the way so left open for public travel is reasonable and convenient.

This brings us to a consideration of the principal question in this case, and one not specially treated of in the Case of Hall et al., supra, and that is the one wherein it is charged in the bill: “And complainants further aver that the construction of said embankment and archway and railroad was aforesaid, upon which is to be operated the aforesaid railroad, will greatly obstruct complainants’ access to view, light, and air, and would greatly cut off the circulation of air, and would place in said highway an obstruction that would be unsightly to the eye. * * * And complainants further aver that said fill across said alley will also wholly cut off and obstruct their access to the view, light, and air over the same from toward Fourteenth street and the south, to Avhich they are entitled.” The bill shows that the complainants are the owners of lots 1, 2, 3, 4, and 5, each of said complainants owning separately and respectively one of said lots, and that the respondent the Alabama Terminal Bailroad Company is the owner of Lots 6, 7, and 8. All of said lots are in the same block, and front on Berkley avenue, and extend back to the alley in question, and all of said lots are of a uniform width of 50 feet. It is further shown that the railroad embankment is entirely on lots 6, 7, and 8, the private property of the respondent the Alabama Terminal Railroad Company, and connecting the fill in the alley and the viaduct or archway over Berkley avenue. The lot of the complainant Crofford is the nearest one of the abutting owners to the point where the viaduct crosses (lie avenue and to the point where the fill crosses the alley; the distance being not less than 50 feet. The lots of the other complainants abutting on said avenue are still further away, from 100 to 250 feet.

So far as the embankment, which is constructed on the respondent’s own private property, affects the complainants’ easement of view, light and air, this is a proposition that contains no merit whatever. No one can doubt the right of a party to build on his own land, even though it entirely cuts off the view, light, and air of his neighbor on the side next to such building. As against an adjacent landowner the doctrine of an easement in light, air and view, is not recognized in this state, even though such right or title be based upon a claim by prescription. — Ward v. Neal, 37 Ala. 500, which case was followed in Jesse French Co. v. Forbes, 129 Ala. 471, 29 South. 683, 87 Am. St. Rep. 71. As to the viaduct over the avenue and the fill in the alley, under the facts stated in the bill as to the distances from complainants’ property and the character of the structure, it is difficult to conceive how the complainants can be affected as to air and light. The right of the respondents to cross the avenue with their railroad is not denied; nor is it denied that the manner of the crossing, -viz., by the overhead viaduct, is the safest for the public using said avenue, and the only feasible way of crossing. We are of the opinion that on the facts of this case there is no such taking, destroying, or injuring of the complainants’ property, within the meaning of section 235 of the Constitution of 1901, as would authorize interference by a court of chancery in the exercise ■ of its restraining powers.

Our conclusion is that the bill is without equity, and the decree dismissing the same will be affirmed.

Affirmed.

Tyson, C. J., and Simpson, Anderson, and .Denson, J.T., concur.