City of Birmingham v. Graves , 200 Ala. 463 ( 1917 )

The statement of the case, found in the dissenting opinion of Mr. Justice THOMAS as well as a discussion in brief of counsel for appellee, discloses that the bill was filed upon the theory that the city was proceeding to take, injure, or destroy the complainant's property without first making just compensation therefor, in violation of section 235 of our Constitution, and reliance was had upon the case of McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153.

A bill of this character, coming within the provisions of section 235 of the Constitution, would, of course, have equity. McEachin v. City of Tuscaloosa, supra; Town of New Decatur v. Scharfenberg, 147 Ala. 367, 41 So. 1025, 119 Am. St. Rep. 81. In the latter case, it was held that when such a bill is filed the city answering the bill and admitting the essential averments thereof, and that the public work was proceeding, would have the right to have a reference, and, the amount of damages ascertained, to pay the same into court and thereby obtain a dissolution of the injunction, so that the work might be proceeded with.

The right of recovery of compensation by the property owner, under the provisions of section 235 of the Constitution, is confined, of course, to where the municipality is engaged in the construction or enlargement of the works, highways, or improvements of the city. Distinct reference to this fact was made in City Council of Montgomery v. Maddox, 89 Ala. 181,7 So. 433, in the following language (with italics as there found):

"Under our Constitution, the right of recovery in such cases is limited, of course, to property taken, injured, or destroyed in a particular mode, viz. 'by the construction or enlargement' of the works, highways, or improvements of the defendant corporation."

To the same effect was the language used in City Council of Montgomery v. Townsend, 80 Ala. 489, 2 So. 155, 60 Am. Rep. 112, where it was said:

"Unless the injury or destruction is produced by a construction or enlargement of some work, highway, or improvement, which is a consequence of the use of the privilege of taking private property for public use, no liability for damages arises, under the Constitution."

We do not find that this has ever been questioned, and, indeed, it would seem to be beyond a doubt from the very language of the Constitution.

The material averments of the answer are set forth in Mr. Justice THOMAS'S opinion, and need not be here repeated. Suffice it to say that the answer in substance sets up, in justification of the action of the city, that the trees here in question had become a continuous nuisance, and that the destruction thereof would be but the exercise of the police powers of the city, and the protection of the inhabitants in caring for their health and comfort, and necessary in order that the city might perform its municipal duty of keeping the public sewerage open. The answer also discloses that the ordinance here discussed was enacted in aid of the city in the exercise of this police power, and the abatement of this nuisance as therein alleged. It is quite clear, therefore, that the answer shows the threatened destruction of these trees was not in the exercise of the power of eminent domain under the Constitution, or "an enlargement or improvement" of the ways, etc., of the city within the meaning of section 235 of the Constitution, and therefore said constitutional provision was not here involved; but, on the contrary, it was in the exercise of the police power of the city.

The opinion of Mr. Justice THOMAS treats the case of McEachin v. City of Tuscaloosa, supra, as being vitally involved, and proceeds to overrule the same. That case is here involved only incidentally, as concerning the equity of the bill. The McEachin Case was decided by a divided court, and was evidently a stubbornly contested litigation. The case construed the provisions of our own Constitution, which in this respect is similar to that of the state of Pennsylvania.

In Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A. (N.S.) 884, it was pointed out that the constitutional provision here referred to was copied from that of Pennsylvania, and the construction given the same by the court of last resort of that state is in accord with the holding in the McEachin Case, supra, citing Chester Co. v. Brower, 117 Pa. 647, 12 A. 577, 2 Am. St. Rep. 713. In this connection the more recent case of Seaman v. Washington,172 Pa. 467, 33 A. 759, may also be cited.

The McEachin Case was decided several years ago, and involves one of the fundamental constitutional property rights of citizens as against the power of eminent domain of the municipality. The decisions of other states and numerous text-writers should have but slight weight here, as they do not involve similar constitutional provisions. Touching as it does one of these fundamental property rights, clearly, the rule of law should become settled so that the citizen may know his rights, and the municipality recognize its limitations, and, in our opinion, the principle of stare decisis should be here firmly applied. We are not in harmony therefore with the adverse criticism of the McEachin Case as set forth in Mr. Justice THOMAS'S opinion, and do not think it should be overruled, but, on the other hand, should be reaffirmed as the established law of this jurisdiction.

We are further of the opinion, however, that upon the merits of this case the McEachin Case is really not involved. Our position may be made more clear by the following simple illustration: The abutting property owner has trees on the margin of the sidewalk, which in no manner obstruct the same or interfere with the use thereof, but which add both ornament and comfort to his premises, and therefore are of value; if the municipality sees fit to widen the street, and this involves a destruction of these trees, then, in our opinion, section 235 of the Constitution comes to his rescue, and the McEachin Case would be there found applicable. If, however, on the other hand, the property owner should plant a tree in the center of the sidewalk and thus obstruct the same, he would create a nuisance which the city could abate without any compensation whatever; and, indeed, it would be the duty of the municipality to remove the tree. In the latter instance, of course, the provisions of the Constitution would have no application whatever, and this, in our opinion, is the instant case as set up in the answer which was undenied.

The removal of the obstruction from the sewerage would no more be such an improvement, as within section 235 of the Constitution, than would the removal of the tree placed in the center of the sidewalk in the illustrated case.

Temporary injunction in this case was not ordered upon presentation of the same to the chancellor, but was set down for hearing on a certain day, as prescribed by section 4528 of the Code of 1907, on which day the answer was filed by the defendant, together with two affidavits in support thereof. These affidavits disclose that the trees presented a continuous obstruction to the sewerage system of the city, and that the sewerage was constructed of standard approved material for that purpose, and in a workmanlike manner, and, further, that it is impracticable to construct a sewer so that an opening as large as a pencil point will not occur, and that the destruction of the trees was necessary to abate the nuisance.

The complainant submitted his case upon the bill only, the averments of which were sworn to by him, and the substance of which is stated in the opinion of Mr. Justice THOMAS. It contained no answer whatever to the allegations of the answer of the city, and this, we presume, for the reason that evidently complainant was proceeding upon the theory that section 235 of the Constitution, as construed in the McEachin Case, fully controlled the situation.

Upon a hearing for a temporary injunction, as provided for under section 4528 of the Code, this court, in McHan v. McMurry, 173 Ala. 182, 55 So. 793, held that the complainant, on such a hearing, is the actor, and can be aided by no rule of favor, like that of assumed amendment; that his bill must be determined, as to its equity, upon the averments contained in it, "unaided by construction and unamplified by assumed amendment"; and in Nelson v. Hammonds, 173 Ala. 14,55 So. 301, speaking of the statute which permitted the introduction of affidavits on the hearing of the motion to dissolve the injunction, the court held that the conclusions for or against dissolving an injunction must, under the statute, be here treated as any other finding of fact at equity upon a defined issue, and, in effect, the decision of course, applies the same rule to section 4528, here being considered.

We are presented here, therefore, with this situation: The bill as filed rests upon the theory that the provisions of section 235 of the Constitution are involved, and that the city was in the exercise of the power of eminent domain. The answer discloses, to our mind too clear for discussion, that the city was not in the exercise of the power of eminent domain, or in the enlargement or improvement of its ways or works within the meaning of the Constitution; but in the exercise of its police power, in the abatement of a continuous nuisance, and its answer is fully supported by the affidavits offered on the hearing of the application for the injunction. The complainant offered nothing to the contrary. The answer therefore is fully proved — is not contradicted — and, indeed, it would seem for all practical purposes to have been confessed. Under the former decisions of this court, above cited, construing this statute, the complainant is regarded as the actor and is to be accorded no rule of favor.

With this situation, as disclosed by the record, we are unable to see wherein the chancellor was authorized to issue the temporary injunction. The answer and the affidavits, undenied, certainly cannot be disregarded. If the complainant had seen proper, he should have amended his bill so as to have met the issues presented by the answer, and have alleged that the city, in the exercise of its police power, was threatened to do serious damage to his property, because it was claimed that it was a continuous nuisance, when in fact such was not the case, and offered affidavits in support thereof. Or, it may be, in cases of this character, though not necessary to be determined, that if the complainant intended to admit the nuisance, he could have declared his purpose to himself, abate the same — if such were possible — and ask protection pending such abatement (Romano v. B. R., L. P. Co., 182 Ala. 335,62 So. 677, 46 L.R.A. [N. S.] 642, Ann. Cas. 1915D, 776; Kyser v. Hertzler, 188 Ala. 658, 65 So. 967); but no such course, as here suggested, was followed. He rested his case evidently upon the theory that the authority of McEachin v. City of Tuscaloosa, supra, gave him full protection. As previously stated herein, we think the answer discloses that the McEachin Case is without application here.

Nor do we consider it material that some provision of the ordinance referred to may be of doubtful validity, as we think the city has the right, under its general police power as disclosed by Mr. Justice THOMAS'S opinion, to abate a continuous nuisance, and this, whether some provision of the ordinance be valid or invalid. It is sufficient that it here appears, without dispute, that the governing authorities of the city have, after giving due notice to the complainant, as provided by the ordinance, ordered the destruction of the trees, and this upon the theory of a nuisance, which was authorized in all respects by said ordinance. Whether or not the city would be able to collect the costs of the removal of the trees from the complainant is clearly a matter with which we are not here concerned upon review of the hearing of the application for injunction.

We are fully mindful of the fact that trees of this character are oftentimes very valuable to the property owner, but we are unable to see how the ruling of the court in granting the injunction, upon the record as here presented can be sustained without disregarding the decisions of this court construing section 4528, Code. We therefore think that the order of the chancellor granting the temporary injunction must be reversed. While this, it is true, might work a dissolution of the injunction, yet it by no means denies to the complainant the right of relief upon appropriate pleadings and proof. He may, upon being advised of the conclusion of the court, amend his bill so as to meet the answer, as herein suggested, and make application for a temporary injunction until the question of nuisance vel non or abatement thereof should be determined by the court in due time. If pending amendment the complainant should be of the opinion he is in need of protection of the court, he may apply for a restraining order, as provided in section 4533 (Code 1907), and, indeed, doubtless this court would be authorized, under said section, to so order, if deemed necessary; but, in view of what is herein stated, we do not at all anticipate any necessity for a consideration of that question here, as we entertain no doubt that the municipal authorities will await seasonable hearing upon the amended bill.

It is therefore our opinion that the order of the chancellor should be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., concur.