Duy v. Alabama Western Railway Co.

57 So. 724, 175 Ala. 162, 1911 Ala. LEXIS 417

• Court: Supreme Court of Alabama
• Decided: December 21, 1911
• Status: Published

Opinions

McCLELLAN, J.

There are two counts in the amended complaint. They will be set out in the report of the appeal.

The questions to which attention is given here arise out of the action of the trial court in sustaining demurrers to these counts.

The first count seeks the recovery of damages to plaintiff’s property, abutting on Fifteenth street, in the city of Birmingham, by reason of the permanent obstruction by defendant of that part of Fifteenth street between First and Second avenues and beyond, across Second avenue from the lots of plaintiff. The theory of this count is that a public nuisance, wrought by the obstruction of a public highway, inflicted special, particular damage to plaintiff’s property. In this count the allegation is that the obstruction was made “on or about the 15th day of August, 1906.” On July 31, 1907 (Local Acts 1907, pp. 644, 645), a local act was approved, whereby the mentioned section of Fifteenth street and two related alleys were vacated. This act, omitting the title, will be set out in the report of the appeal. Our construction of its second section will be later stated.

Independent of averment, the courts of this state take judicial notice of public acts of the Legislature, though local in application. — Badgett v. State, 157 Ala. 20, 48 South. 54; McCarver v. Herzberg, 120 Ala. 523, 25 South. 3; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65.

In cases where the Legislature may enact with a retroactive effect, the courts will not construe the enactment to control or affect past transactions or matters, unless the Legislature expresses a clear intention to give the enactment a retroactive operation. — Gould v. Hayes, 19 Ala. 438, 451; Barnes v. Mobile, 19 Ala. 707, 709; Smith v. Kolb, 58 Ala. 645; New Eng. Mort. Co. v. Board of Revenue, 81 Ala. 110, 1 South. 30; Wetzler v. Kelly, 83 Ala. 440, 3 South. 747; 4 May. Dig. p. 859.

There is nothing in the mentioned local act evincing any legislative intent to confirm or -ratify from its inception the obstruction described before the vacation accomplished by the local act, as was the express purpose of the enactment considered in State ex rel., etc., v. L. & N. R. R. Co., 158 Ala. 208, 48 South. 391.

So the first count must, if its sufficiency upon demurrer is vindicated here, be treated as claiming damages, suffered in consequence of the public nuisance charged, between the origination thereof and the approval of the vacating act.

The second count takes express account of the vacating act, and restates the provision of the second section thereof in respect of compensation “to any property owner who may sustain any special injury by virtue of any structure erected in or across the portion of said street or alleys vacated thereby.” This (second) count then enters upon an enumeration of the damages suffered and to be (in future) suffered, and includes, by adoption, the damages alleged in the first count, and adds thereto that said structures deprive the property of access to and egress from First avenue by way of Fifteenth street, that approach to his property has been thereby rendered less accessible to customers and intending customers, and that trade of the general public has been thereby deflected or diminished, and that all access to First avenue over Fifteenth street has been thereby entirely cut off. The damages alleged in the first count are diminution in value of the property because of deflected public travel by it, thereby to a large degree minimizing its prominence, and the impaired convenience and accessibility of the property to street car lines along First avenue.

In the second count the erection of the permanent structure, in the described area between First and Second avenues, is alleged to have been made by defendant “on, to wit, the 15th day of June, 1907,” a date, if taken particularly, antedating the approval of the vacating act on July 31, 1907. The second section of the vacating act, particularly mentioned in the second count, did not confer, or provide for, or attempt so to do, compensation or remedy for injury to property resulting from or attending the vacation of the section of Fifteenth street and the alleys described in the act. The second section of the local act contemplated only the preservation (a work of supererogation) of the right, and but echoed therefore the legal remedy already existent, a property owner, specially injured by the nuisable characteristics or consequences of the structures erected in or across the area vacated, had to enforce recompense therefor. The public right, subject to the legitimate power of the Legislature to lift, was consistent with the dedication mentioned in the act, but an easement upon a servient estate. When that was legally extinguished by legislative declaration, the legislative power attained the limit of its rightful force and effect; and any legislative effort to deal with or to affect the use or enjoyment of the area so relieved of the burden of the public easement was a vain assumption. —Jackson v. Birmingham F. & M. Co., 154 Ala. 464, 470, 45 South. 660. The second count neither charges nor relies upon any right of action arising out of the unwholesome or deleterious character or consequences of the structures erected in the area vacated as a public way by the local act. It is its quality as an obstruction or hindrance of which complaint is made. Under this interpretation of the second section of the vacating act, its inclusion by averment in the second count avails nothing in the assertion of a right of action by this plaintiff against this defendant.

The constitutionality of the vacating act as regards the plaintiff’s property is not to be doubted. Except as restricted by the Constitution, the state’s power is plenary in respéct of the vacation of streets and highways within its borders. — Jackson v. Birmingham F. & M. Co., 154 Ala. 464, 45 South. 660.

As to the state itself, the sole restraint in the particular now important is Const. § 23, wherein it is provided that “private property shall not be taken for, or applied to, public use, unless just compensation be first made therefor.” Section 235 is addressed to the restraint of “municipal and other corporations and individuals invested with the privilege of taking property for public use.” This latter section does not apply to the state itself in the exercise of its sovereign power in restraint of which, in so far as we are now concerned, Const. § 23, alone operates. It was ruled in Jackson v. Birmingham F. & M. Co., supra, that a property owner whose lot abutted on a street had a special, private property right in the street, which could not be taken, by a vacation of the street, without compensation, if such vacation, by the state, operated to deprive the property of a reasonably convenient means of access thereto. In the Jackson Appeal, as appears, consideration was alone given the validity vel non of the legislative act as affected by Const. 1875, art 1, § 24; Const. 1901, § 23. No account was or could be taken of section 25, or of its predecessor in the Constitution of 1875, for, as stated, that section of the Constitution did not restrict the state itself in the exercise of its power in the premises. The doctrine of the Jackson Appeal was restated in Hall v. A. B. & A. R. R. Co., 158 Ala. 271, 48 South. 365, though the ruling was inadvertently referred to section 235 of the Constitution. And this decision (Jackson v. Birmingham F. & M. Co.) was again referred to in Meighan v. Birmingham Terminal Co., 165 Ala. 591, 599, 600, 51 South. 775, where, in treatment of charge 2, it was said that the “language was taken from the opinion” in Jackson’s Appeal, and the use of the word “aesthetic” was said to be “open to verbal criticism.” The word (“aesthetic”) as employed in the mentioned charge, was subject to the criticism put upon it; but in the grammatical connection, materially different, in which it was used in the opinion mentioned (Jackson’s Appeal), it was not open to that criticism, for it there qualified the noun “taste” which was the subject of the verb “allowed.” As employed in the opinion in Jackson’s Appeal, “aesthetic” did not refer to “convenience of way.” The expression, in the opinion in Jackson’s Appeal, was aptly incorporated in limitation of the generally stated private right of access, therein before considered, succinctly reiterated in Hall v. A. B. & A. R. R. Co., supra. It affirmatively appears from the map exhibitéd with the second count that the legislative vacation of the described section of Fifteenth street and of the related alleys did not infringe upon the private right of access stated in the opinion in Jackson’s Appeal, supra,. So, the second count must be treated as claiming compensation for a like wrong to that asserted in the first cotínt, viz., for the obstruction of the public way between the creation of the obstruction, as alleged in the second count, and the date of approval of the vacating act.

One who suffers, in person or property, special peculiar injury in consequence of a public nuisance, has his action in damages therefor against the creator thereof; but, if his injury be only that common to the public, he has no right of action, for he has suffered no injury of his private right. — Elliott on Roads & Streets, § 669, and citations, notes thereto; Birmingham R. L. & P. Co. v. Moran, 151 Ala. 187, 44 South. 152; Dennis v. M. & M. Ry. Co., 137 Ala. 649, 658, 35 South. 30, 97 Am. St. Rep. 69; Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384, 41 South. 907, 8 L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285; Jones v. Bright, 140 Ala. 268, 37 South. 79; full note to Stetson v. Faxon, 31 Am. Dec. 123,132, 135; and notes to 5 Am. Dec. 18-21. Judge Freeman’s conclusion in the pertinent particular in the note to Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123, is approvingly referred to in S. S. S. & I. Co. v. Johnson, supra. Whether the individual property owner seeks equity’s poAver to abate a public nuisance created by the obstruction of a highAvay, or impleads the obstructor of the highAvay in a court of laAV to respond in damages suffered in consequence of the obstruction, the fundamental principle inheres in the right he Avould in each instance assert and vindicate, namely, that the obstruction has inflicted special, peculiar damage upon him, different from that inflicted upon the public. If the Avrong to him is only that common to the public, he is Avithout individual right to assert or vindicate; and his cause, in either tribunal, must fail, for the public Avrong suffered cannot be redressed or its cause removed by an individual Avho has not been specially, peculiarly damaged thereby. — Author., supra. Reference to many of the decisions of eminent courts dealing Avith the question in concrete cases, Avhether the property OAvner has suffered special, peculiar damage in consequence of the obstruction of a highAvay, Avhereby ingress and egress to the property has not been entirely cut off, but the traversing of a circuitous route is thereby compelled, discovers a marked inharmony even where the status was, in substance, the same. In Williams’ Case, 3 Coke’s Rep. 73, it was pertinently said: “A man shall not have an action on the case for a nuisance done in the highway, for it is a common nuisance, and then it is not reasonable that a particular person should have the action; for by the same reason that one person might have an action for it, by the same reason every one might have an action, and then he would be punished 100 times for one and the same cause. But, if any particular person afterwards by the nuisance done has more particular damage than any other then, for that particular injury, he shall have a particular action on the case. * * *”

This statement is quoted and strongly approved for its directness, simplicity, and readiness of application in the note to Stetson v. Faxon, supra; and this court has approved the conclusion there drawn by the learned editor in Jones v. Bright and S. S. S. & I. Co. v. Johnson, supra, and in the latter decision it was ruled that an enforced circuity of route from the property owner’s location to the outside world wrought a special, peculiar injury to him. To like effect was the ruling in Jones v. Bright, supra. No distinction in principle can in our opinion be taken in respect of the specialty of the injury to the property owner between cases where circuity of route to the outside world and consequent-diminution of value of his property is the result of the obstruction of the highway, and cases where, as is here alleged, the obstruction minimizes the prominence of a property by deflecting the popular use of the way on which it abuts, and thereby, it may reasonably be alleged, lessening its value. Such a state of injury must be special, peculiar to the owner of the property. It is a particular injury within the quoted doctrine of the Williams Case, supra; and accords with the therewith consistent ruling in our cases of Jones v. Bright and S. S. S. & I. Co. v. Johnson, supra, and the authorities therein cited, and with the express ruling made in Sloss-Sheffield Steel & Iron Co. v. McLaughlin, 173 Ala. 76, 55 South. 522, delivered since the foregoing opinion was prepared. The rulings made on the several appeals in Southern Railway Co. v. Ables, 153 Ala. 523, 15 South. 234, and Ables v. Southern Ry. Co., 164 Ala. 356, 51 South. 327, Id., 55 South. 816, are not, the court holds, opposed to the conclusion now expressed. That other properties are thereby likewise injuriously affected does not render the injury any the less special or particular. —29 Cyc. p. 1213.

In the light of these considerations, the counts of the amended complaint were not subject to the demurrer interposed thereto, since each sufficiently set forth a cause of action for damages in consequence of the obstruction of the street before the vacating act was approved July 31, 1907. — Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 South. 775; Sloss-Sheffield S. & Iron Co. v. McLaughlin, 173 Ala. 76, 55 South. 522.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.

Simpson, Anderson, Sayre, and Somerville, JJ., concur. Dowdell, C. J., not sitting. Mayfield, J., dissents.