Birmingham Belt R. Co. v. City of Birmingham , 211 Ala. 674 ( 1924 )

This bill is filed by the city of Birmingham against the Birmingham Belt Railroad Company, seeking the removal of two railroad tracks maintained and used by the respondent, located on the outside of a certain strip 26 feet in width in the center of Thirty-Second street in said city, which said strip is not involved in these proceedings.

That Thirty-Second street has been irrevocably dedicated to the use of the public as a highway, and such dedication accepted by the city, is well established by the averments of the bill, which was so conceded on the former appeal in this cause. Birmingham Belt R. R. Co. v. City of Birmingham,209 Ala. 501, 96 So. 597. See, also, Stack v. Tenn. Land Co.,209 Ala. 449, 96 So. 355; Smith v. City of Dothan, ante, p. 338,100 So. 501.

As to these "outside tracks" (to so designate them for convenience), the bill alleges they were wrongfully and illegally constructed and maintained in said street. It is well established that the "unauthorized construction of a railroad in a street is a public nuisance that may be enjoined." L. N. R. R. Co. v. M., J. K. C. R. Co., 124 Ala. 162, 26 So. 895.

Upon former appeal the bill was held subject to demurrer for the reason that, from aught appearing therein, these two "outside tracks" were laid under provisions of section 3493 of the Code of 1907, with the approval of the county authorities prior to the annexation of that portion of the street as a part of the city of Birmingham. The bill as amended meets this objection by averring that, as to one of these tracks, it was laid without having secured from the county authorities any right, license, permit, or authority therefor, and as to the other, which seems to have been constructed subsequent to the enlargement of the city limits so as to include this portion of the street, it is alleged that this track was laid without having obtained any "such license, right, permit, or authority from any body, person, or collection of persons authorized by law to give, grant, or issue the same." The bill as amended further avers that these two tracks practically consume the entire street left for vehicular travel, and that substantially the whole of said street between Fifth and Eighth avenues, intended for vehicular traffic other than railroad cars, and not embraced within the 26-foot strip in the center thereof, has been wrongfully and illegally taken possession of, and is now occupied by respondent.

It is therefore insisted by counsel for appellee that in view of these averments, section 3493, supra, is not to be construed as authorizing a use of the street which would exclude the public use thereof, citing 3 Dillon on Municipal Corporations, § 1241; Palatka, etc., R. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395. But, in view of the express averments of the bill denying such permission under said section, a consideration of this question is not presented.

As we read and understand brief of counsel for appellant, the insistence is that, notwithstanding these tracks were laid without permission or authority, yet the continuous use and occupation thereof for a period of 15 years with the knowledge and acquiescence of the municipality, raises a conclusive presumption of a grant, citing in support thereof New Castle v. Lake Erie R. Co., 155 Ind. 18, 57 N.E. 516; Chicago, etc., R. Co. v. Johnson, 45 Ind. App. 162, 90 N.E. 507; Santa Rosa R. Co. v. Central R. Co., 4 Cal. Unrep. Cas. 950, 38 P. 986.

Whatever may be said as to these authorities, we are of the opinion this insistence is not in accord with the former decisions of this court, which hold, as expressed in headnote 4 to Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62, as follows:

"A city or town has no alienable interest in the public streets thereof, but holds them in trust for its citizens and the public generally; and neither its acquiescence in an obstruction or private use of a street by a citizen, or laches in resorting to legal remedies to remove it, nor the statute of limitations, nor the doctrine of equitable estoppel, nor prescription, can defeat the right of the city to maintain a suit in equity to remove the obstruction." See, also, Rudolph v. City of Birmingham, 188 Ala. 620, 65 So. 1006; Reed v. Mayor, etc., 92 Ala. 339, 9 So. 161.

Some of the material averments of the bill as amended are upon information and belief. The bill in this respect meets the form approved by this court. Cullman Property Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574; Burgess v. Martin, 111 Ala. 656,20 So. 506.

The amended bill is sworn to by one of the attorneys of the complainant to the effect that the allegations of the bill are true as therein stated. The bill in this respect is not subject to demurrer. The authorities relied upon by counsel (Allen v. Wayne, 159 Mich. 612,124 N.W. 581; Thayer v. Augustine, 55 Mich. 187,20 N.W. 898, 54 Am. Rep. 361) relate to the propriety of the issuance of the preliminary writ of injunction in the absence of more specific verification, and not to the sufficiency of the bill as here framed. Here, there has been no preliminary injunction issued or sought, and these authorities are therefore without application. 2 High on Injunctions (4th Ed.) § 1569.

We are of the opinion the court below properly ruled in overruling the demurrer to the bill as amended, and the decree will be accordingly here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.