Florence Land Co. v. City of Florence

Supreme Court of Alabama

Florence Land Co. v. City of Florence

75 So. 19, 199 Ala. 580, 1917 Ala. LEXIS 234

DecidedApril 5, 1917

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Florence Land Co. v. City of Florence, 75 So. 19, 199 Ala. 580, 1917 Ala. LEXIS 234 (Ala. 1917).

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Opinion

ANDERSON, C. J.

(1) This case has been here upon former appeal, 193 Ala. 179, 69 South. 109. It was there held that the bill was subject to demurrer for reasons there set forth. The bill was subsequently amended to meet the opinion of this court [583]*583upon former appeal, and we think that the bill as amended is sufficient, and was not subject to the respondent’s demurrer.

(2) The averment as to the conduct of the Florence Land & Mining Company, whether well pleaded or not, did not go to the equity of the bill, as it was merely cumulative or superfluous, and did not vary the principle of the relief claimed.—Worthington v. Miller, 134 Ala. 421, 32 South. 748; Noble v. Moses, 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175.

(3) We think that the bill contains equity as one to abate a nuisance caused by encroaching upon or interfering with a public park, notwithstanding the city may claim in its bill to have the legal title to said park. Moreover, this question could and should have been raised and presented upon the former appeal.—Ala. City R. R. v. Bates, 155 Ala. 347, 46 South. 776.

The decree of the chancery court is affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.

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