The appellant filed this bill against the town of Luverne and others, seeking to abate public nuisances created by buildings erected in two streets of that municipality. These public ways are described in the record as "Le Grande avenue" and "Seventh street," respectively. The former runs north and south, and the latter east and west. Le Grande avenue either attinges or intersects Sixth and Seventh streets, the latter street being 80 feet in width. Complainant's lot, with a small building thereon, abuts the south side of Seventh street, opposite the point where, on the north side of Seventh street, Le Grande avenue either attinges or intersects the north line of Seventh street.
In the answer of the respondents (third paragraph) it is admitted that Le Grande avenue "was dedicated as a street by the Luverne Land Company, the owner of the freehold at the time of the survey and plat of said town of Luverne, Ala.," and that the same is 80 feet in width. That there was an efficient, perfected dedication of these ways to the public use, vesting, so far as this record shows, an easement only in the public (28 Cyc. pp. 845, 846) through an appropriate, recorded platting of the area and the subsequent sale of one or more lots with reference to the plat, as well as the assumption of dominion over Le Grande avenue, as a public street, by the town authorities in erecting the structures in it, is beyond question. Roberts v. Matthews, 137 Ala. 523, 528, 34 So. 624,97 Am. St. Rep. 56; Moragne v. Gadsden, 170 Ala. 124,54 So. 518, among others. If, however, the dedication to public use was not effective, the right of the reversioners, the owners of the fee, to recover the thus appropriated area would present inquiries and the application of principles not at this time pertinent. It is clear from the record that the structures put in Le Grande avenue by the municipal authorities, though they are of a purely public nature, as well as the shed erected within the lines of Seventh street by the Crenshaw County Gin Company under the license of the municipality, are obstructions in these effectually dedicated public ways, and therefore constitute public nuisances; and this is true whether the obstructions only partially interfere with the commodious use of both these streets, the public right to their unimpeded use being coextensive with the entire surface thereof. State v. Mobile, 5 Port. 279, 30 Am. Dec. 564; 4 Notes on Am. Dec. 1214-1216, annotating our case of State v. Mobile; First Nat. Bank v. Tyson, 133 Ala. 459, 472, 473, 32 So. 144,59 L.R.A. 399, 91 Am. St. Rep. 46; Costello's Case, 108 Ala. 45,18 So. 820, 35 L.R.A. 303; 28 Cyc. 853, 854; Joyce on Nuisances, § 214; City of Troy v. Watkins, 201 Ala. 274,78 So. 50; Greil v. Stollenwerck, 201 Ala. 303, 78 So. 79; Hausman v. Brown, 201 Ala. 331, 77 So. 993, 994, 995. The excavations and obstructions made and erected in these public ways were and are inconsistent with the use
of them as highways, to which purpose alone they were dedicated. Author, supra. These obstructions and encroachments upon these highways are permanent in their very nature. Being permanent in their very nature, and the public nuisance created by them being conclusively established, if not in legal effect admitted, the only open question is whether or not this complainant, who invokes the power of the court of equity to abate these public nuisances, suffers because thereof such a special peculiar injury, in respect to his property, as would authorize his appeal to the injunctive power of the court of equity to abate them. Duy v. Ala. Western R. R. Co., 175 Ala. 162,174, 177, 57 So. 724, Ann. Cas. 1914C, 1119; City of Troy v. Watkins, supra; Greil v. Stollenwerck, supra; Hausman v. Brown, supra — among others readily accessible.
For more than three-quarters of a century it has been regarded as the settled doctrine of this jurisdiction that an existing public nuisance created by the obstruction of or encroachment upon a public street will be abated, or a threatened nuisance of that character prevented, through the power of a court of equity to issue injunctive process at the suit of a complaining property owner who is thereby damaged in his property rights different in kind and degree from the damages suffered by the public generally. Bank v. Tyson,133 Ala. 459, 32 So. 144, 59 L.R.A. 399, 91 Am. St. Rep. 46; Bank v. Tyson (second appeal) 144 Ala. 457, 39 So. 560, among numerous other of our decisions cited in them. So far from conditioning or qualifying the absolute right to injunctive process, under the circumstances stated, to abate or to prevent this character of public nuisance upon the weighing or balancing of the relative convenience or loss of the parties if the injunction is issued or denied, this court has long since deliberately declared, even on hearing for the temporary writ, that the relative prejudice between the parties resulting from the granting or the refusal to grant the writ was "wholly immaterial" (Bank v. Tyson, 133 Ala. 475, 32 So. 149,59 L.R.A. 399, 91 Am. St. Rep. 46); and in this case on second appeal (144 Ala. 468, 39 So. 561) that sound view was further emphasized in these words:
"And the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only
often furnishes the very best reason why a court of equity should interfere in cases where the nuisance is a continuousone." (Italics supplied.)
One reason, among others, for this preservative, conservative doctrine, which retutes recourse to a comparison of results to accrue from abating or preventing a public nuisance of this character, is that the creator of a public nuisance of this type whether the creator is a person, corporation, or municipal body — is an offender against the laws; and to extend to an offender the consideration that would institute a pecuniary comparison from which to deduce relative prejudice or benefit between the parties to result from granting or denying injunctive process to abate or to prevent a public nuisance would reward, not condemn, the offender, to the prejudice of the property owner who is specially, peculiarly damaged by the offender's act — in proportion as he made or would make outlay to effect the creation of the public nuisance.
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The appellant filed this bill against the town of Luverne and others, seeking to abate public nuisances created by buildings erected in two streets of that municipality. These public ways are described in the record as "Le Grande avenue" and "Seventh street," respectively. The former runs north and south, and the latter east and west. Le Grande avenue either attinges or intersects Sixth and Seventh streets, the latter street being 80 feet in width. Complainant's lot, with a small building thereon, abuts the south side of Seventh street, opposite the point where, on the north side of Seventh street, Le Grande avenue either attinges or intersects the north line of Seventh street.
In the answer of the respondents (third paragraph) it is admitted that Le Grande avenue "was dedicated as a street by the Luverne Land Company, the owner of the freehold at the time of the survey and plat of said town of Luverne, Ala.," and that the same is 80 feet in width. That there was an efficient, perfected dedication of these ways to the public use, vesting, so far as this record shows, an easement only in the public (28 Cyc. pp. 845, 846) through an appropriate, recorded platting of the area and the subsequent sale of one or more lots with reference to the plat, as well as the assumption of dominion over Le Grande avenue, as a public street, by the town authorities in erecting the structures in it, is beyond question. Roberts v. Matthews, 137 Ala. 523, 528, 34 So. 624,97 Am. St. Rep. 56; Moragne v. Gadsden, 170 Ala. 124,54 So. 518, among others. If, however, the dedication to public use was not effective, the right of the reversioners, the owners of the fee, to recover the thus appropriated area would present inquiries and the application of principles not at this time pertinent. It is clear from the record that the structures put in Le Grande avenue by the municipal authorities, though they are of a purely public nature, as well as the shed erected within the lines of Seventh street by the Crenshaw County Gin Company under the license of the municipality, are obstructions in these effectually dedicated public ways, and therefore constitute public nuisances; and this is true whether the obstructions only partially interfere with the commodious use of both these streets, the public right to their unimpeded use being coextensive with the entire surface thereof. State v. Mobile, 5 Port. 279, 30 Am. Dec. 564; 4 Notes on Am. Dec. 1214-1216, annotating our case of State v. Mobile; First Nat. Bank v. Tyson, 133 Ala. 459, 472, 473, 32 So. 144,59 L.R.A. 399, 91 Am. St. Rep. 46; Costello's Case, 108 Ala. 45,18 So. 820, 35 L.R.A. 303; 28 Cyc. 853, 854; Joyce on Nuisances, § 214; City of Troy v. Watkins, 201 Ala. 274,78 So. 50; Greil v. Stollenwerck, 201 Ala. 303, 78 So. 79; Hausman v. Brown, 201 Ala. 331, 77 So. 993, 994, 995. The excavations and obstructions made and erected in these public ways were and are inconsistent with the use
of them as highways, to which purpose alone they were dedicated. Author, supra. These obstructions and encroachments upon these highways are permanent in their very nature. Being permanent in their very nature, and the public nuisance created by them being conclusively established, if not in legal effect admitted, the only open question is whether or not this complainant, who invokes the power of the court of equity to abate these public nuisances, suffers because thereof such a special peculiar injury, in respect to his property, as would authorize his appeal to the injunctive power of the court of equity to abate them. Duy v. Ala. Western R. R. Co., 175 Ala. 162,174, 177, 57 So. 724, Ann. Cas. 1914C, 1119; City of Troy v. Watkins, supra; Greil v. Stollenwerck, supra; Hausman v. Brown, supra — among others readily accessible.
For more than three-quarters of a century it has been regarded as the settled doctrine of this jurisdiction that an existing public nuisance created by the obstruction of or encroachment upon a public street will be abated, or a threatened nuisance of that character prevented, through the power of a court of equity to issue injunctive process at the suit of a complaining property owner who is thereby damaged in his property rights different in kind and degree from the damages suffered by the public generally. Bank v. Tyson,133 Ala. 459, 32 So. 144, 59 L.R.A. 399, 91 Am. St. Rep. 46; Bank v. Tyson (second appeal) 144 Ala. 457, 39 So. 560, among numerous other of our decisions cited in them. So far from conditioning or qualifying the absolute right to injunctive process, under the circumstances stated, to abate or to prevent this character of public nuisance upon the weighing or balancing of the relative convenience or loss of the parties if the injunction is issued or denied, this court has long since deliberately declared, even on hearing for the temporary writ, that the relative prejudice between the parties resulting from the granting or the refusal to grant the writ was "wholly immaterial" (Bank v. Tyson, 133 Ala. 475, 32 So. 149,59 L.R.A. 399, 91 Am. St. Rep. 46); and in this case on second appeal (144 Ala. 468, 39 So. 561) that sound view was further emphasized in these words:
"And the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only
often furnishes the very best reason why a court of equity should interfere in cases where the nuisance is a continuousone." (Italics supplied.)
One reason, among others, for this preservative, conservative doctrine, which retutes recourse to a comparison of results to accrue from abating or preventing a public nuisance of this character, is that the creator of a public nuisance of this type whether the creator is a person, corporation, or municipal body — is an offender against the laws; and to extend to an offender the consideration that would institute a pecuniary comparison from which to deduce relative prejudice or benefit between the parties to result from granting or denying injunctive process to abate or to prevent a public nuisance would reward, not condemn, the offender, to the prejudice of the property owner who is specially, peculiarly damaged by the offender's act — in proportion as he made or would make outlay to effect the creation of the public nuisance. Our laws contemplate no such invidious discriminations or comparisons, certainly not with the view to determining whether vested rights are to be protected or vindicated in the courts against unlawful invasions. The suggestion that the public may have an interest to be considered and conserved by refusing, at the suit of a specially damaged property owner, an injunction to abate a permanent, continuous public nuisance is based upon a logical impossibility — in fact as well as in terms — for a conclusively shown public nuisance of this character is such because it offends the public right to the unimpeded use of the whole public highway. To say that the public has an interest opposed to or to be weighed against a property owner's complete relief, in one proceeding in equity, from the peculiarly, specially damnifying consequences immediately resulting from a public nuisance involves the affirmation, obviously incongruous, that the public may have an interest, worthy to be considered and protected, that is palpably opposed to public law. Of course, the public, no more than an individual, cannot have an interest or right opposed to the law. Indeed, a complaining property owner, who is peculiarly damaged by a public nuisance of this character, is asserting the public right against a wrong to the public; and a denial of the repeatedly approved remedy by injunction to abate a public nuisance cannot be predicated of a theory that would introduce this palpable contradiction: That out of such a public wrong, such a public offense, a right or equity may accrue to the public to prevent the abatement, the removal of the very obstacle, in the public highway, that constitutes the public wrong, the public nuisance. It is because no right can be predicated of such a public wrong that neither rules of prescription nor statutes of limitations are available to preserve, against injunctive process, the offending status in a public highway. Reed v. City of Birmingham, 92 Ala. 339, 348,349, 9 So. 961; Stouts Mountain Co. v. Ballard, 195 Ala. 283,287, 70 So. 172.
Allied with the like idea of the sanctity and permanency of the public right in public highways, effectually dedicated to public use, it has been often held in this court that the failure, omission, or refusal of public authorities to open, use, or repair a public highway for however long will not affect or prejudice the public right therein. Smith v.
Opelika, 165 Ala. 630, 51 So. 821; Rudolph v. City of Birmingham, 188 Ala. 620, 632, 65 So. 1006.
It is thought by some that individual observations made by Justice Turner in Attorney General ex rel., etc., v. Sheffield Gas Consumers' Company, 3 De G. M. G. *304, *319, 19 Eng. Ruling Cases, 273, 277, justify a conclusion affected with the consideration that the public may have an interest or benefit in the continuance of a public nuisance that may qualify the right of a specially damaged property owner to injunctive process to abate or to prevent a public nuisance. A reading of the opinions subsequently delivered in Attorney General v. Cambridge Gas Co., 19 Eng. Ruling Cases, p. 289, will readily disclose the mistake of so regarding the individual statement of Justice Turner in the Sheffield Case, supra. It will suffice to note, in this connection, that the action there sought to be enjoined was but a temporary interference with the use of the street, resulting from the process of laying pipes in the bed of the street, not a case, as here, where the street was permanently, continuously obstructed by permanent structures.
The reference in Clifton Iron Co. v. Dye, 87 Ala. at pages 470, 471, 6 So. 192, Stone, C. J., writing, to the weighing of the injury that might accrue to the public if the injunction there sought was granted had no sort of relation to cases where injunction to abate a public nuisance, caused by obstruction of or encroachment upon a public street, entailing peculiar injury to a property owner, was the relief sought. The decisions and texts therein cited, as well as the case before this court, demonstrate this fact. There the bill, by a lower riparian proprietor, sought to enjoin the pollution of the stream by an upper proprietor. The court decided that the upper proprietor had a right to use the street to "wash" its ores, in the stream flowing through its domain. How radically different where the act done creates a permanent public nuisance, positively offensive to the law and the public right, and peculiarly, specially, injuring the complaining property owner!
In McBryde v. Sayre, 86 Ala. 458, 462, 5 So. 791, 792,3 L.R.A. 861, the relief sought by way of injunction, to quote the opinion, partook "largely of the nature of a bill for specific performance," the court announcing the familiar rule that relative conveniences or inconveniences will be weighed, expressly restricting the exercise of the discretion in mind to the benefit of "an unoffending party." Certainly, the creator of a public nuisance cannot claim the consideration accorded, in some circumstances, to "an unoffending party."
Whether a complainant seeking injunctive relief against a public nuisance which peculiarly inflicts damage upon his property discharges this burden, this condition to any right in him to invoke equity to abate a nuisance presents a question of mixed law and fact, following averments in his pleadings effective to raise that issue. This complainant, appellant, sought to meet the burden through allegations and evidence that went to these effects: That the natural flow of surface waters was so charged by these encroachments upon Le Grande avenue and Seventh street as to precipitate surface waters, in undue volume, upon his lot, to his damage; that the easement of access to his lot was wrongfully impaired; that the easement of view from his lot, to the north across Seventh street, was thereby interfered with; and that the noise, dust, etc., incident to the operation of the town's water, light, and ice plant in Le Grande avenue and of the gin, the shed only of which appears to be in Seventh street, wrought a diminution of the value as well as the income from the rental of his premises. Aside from the matter of the precipitation on the lot of surface waters, the complainant's claims of special, peculiar injury, proximately resulting from the obstructions, appear to be similar to those asserted in Bank v. Tyson, 133 Ala. and 144 Ala., supra. As readily appears from consideration of that case on both appeals and that of State v. Mobile, supra, among others, the applicability of the doctrine of these cases cannot be discriminated because in the former only the foundations of the encroachments had been laid within the lines of the street; whereas, in the Mobile Case one of the obstructions had already been placed in the street. It appears from this record that an agreement was entered into between the parties under the terms of which the court viewed the locus in quo involved in this cause, the agreement stipulating "that the court in reaching its decision in this cause shall (should) use the knowledge gained by said inspection * * * in connection with all the testimony in the case," and requesting the chancellor "to set out in succinct form the facts as he found them by his personal inspection." The recitals of the record preceding the decree disclose that the inspection contemplated was made. It thus affirmatively appears that the court below had before it evidential matter, immediately bearing upon the issue of fact stated, that this record does not afford this court — evidential matter that, by positive agreement of the parties, was made such for its effect upon the judicial judgment. This court is exercising in this cause an appellate function only, to review the decree predicated necessarily of the conclusion of fact attained by the court below. It has been long and repeatedly declared in this court that where the trial court had before it pertinent evidential matter not presented or made available
to this court on appeal, the conclusion of fact prevailing in the trial court cannot be reviewed or revised.
Jefferson v. Sadler, 155 Ala. 539, 46 So. 969, where it was said:
"Therefore, it affirmatively appearing that there was evidence before the chancery court which is not set out in the record, according to our former decisions, we hold that we cannot review the conclusions of the chancellor on the facts."
Wood v. Wood, 119 Ala. 185, 24 So. 842, where it was said, Brickell, C. J., writing:
"It is a settled rule that the conclusion or finding on the facts by the chancellor will not be reviewed when it affirmatively appears that there was evidence before the court which is not set out in the record."
Faught v. Leith, 201 Ala. 452, 78 So. 831, where it was said:
"The decree of the court discloses that the conclusion reached was based upon the affidavits, and also upon thispersonal investigation of the property thus visited. Clearly, therefore, this court has not before it the full evidentiary data the trial court had, and his conclusion upon the facts will not therefore be here disturbed." (Italics supplied.)
The like rule was applied in Hale v. Tenn. Co., 183 Ala. 507,62 So. 783; McPherson v. Hood, 191 Ala. 146, 67 So. 994; Jones v. Jefferson County et al., ante, p. 137, 82 So. 167; Dancy v. Ratliff, 201 Ala. 162, 77 So. 688, 690, among others.
ANDERSON, C. J., and THOMAS, J., concur with the writer in that part of the foregoing opinion stating and applying the rule which forbids review in this court of the conclusion of fact obtaining in the trial court, where the trial court had relevant evidential matter that is not presented to this court; and for that reason ANDERSON, C. J., and THOMAS, J., together with the writer, are of the opinion that the decree appealed from should be affirmed. The views of the other Justices are set forth in the respective opinions of Justices SOMERVILLE, MAYFIELD, and SAYRE. The decree is affirmed for the reasons stated in the opinions of McCLELLAN, J., and SAYRE, J.
MAYFIELD, SOMERVILLE, and GARDNER, JJ., dissent.