Duckworth v. Town of Robertsdale

28 So. 2d 182, 248 Ala. 432, 1946 Ala. LEXIS 121

Opinion

BROWN, Justice.

The appeal is from the interlocutory decree of the circuit court overruling the defendant’s demurrer to the bill. The' demurrer challenged the bill on sundry specific grounds and for want of equity.

The major insistence is that the complainant has a complete and adequate remedy at law. We are of opinion that the demurrer was properly overruled.

- The bill does not seek to recover possession of the segment of land of which the defendants are in possession, but seeks to abate a public nuisance by compelling the removal of a permanent obstruction erected in the street — a building maintained and used for private business — and to declare void the instrument executed by the mayor in the name of the town purporting to convey a segment of a public street to the defendant Duckworth, with condition subsequent running with the land.

The alleged deed or license under which the defendants are holding is clearly ultra vires and void, and the building constructed and maintained in the street is a public nuisance, abatable at the instance of the municipality by bill in equity. Code of 1940, Tit. 7, § 1085; McCraney v. City of Leeds, 241 Ala. 198, 1 So.2d 894; Snead v. Tatum, 247 Ala. 442, 25 So.2d 162; 38 Am. Juris, p. 182, § 506; City of Enterprise v. Rawls, 204 Ala. 528, 86 So. 374, 11 A.L.R. 1175; Pearson v. Duncan & Son, 198 Ala. 25, 73 So. 406, 3 A.L.R. 242.

Affirmed.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.