
    Dennis v. Mobile & Montgomery Railway Co. et al. and Mobile & Montgomery Railway Co. et al. v. Dennis.
    
      Bill in Hquity to enjoin Public Nuisance.
    
    1. Public, nuisance; when bill cannot be maintained by private citizen. — The jurisdiction of a court of equity to restrain a public nuisance at the suit of a private individual, is exercised only where the individual has a legal right and is without adequate remedy for its enforcement; and, therefore, in order for a private individual to maintain a bill for such purpose, it must be averred and shown, not only that the complainant will sustain some special injury peculiar to himself, distinct and independent of the general injury to the public, but it must also be averred and shown that the injury will be irreparable, or will be such that complete compensation therefor cannot be obtained in a single action at law.
    2. Same; same; right of owner of property abutting on a street to have railroad company remove depot building from across said street. — In a bill in equity the following facts were averred: complainant owned a lot abutting on Lee street in the city of Montgomery. At the head of said street the defendant railroad companies had erected a union depot. Just south of said union depot, between it and complainant’s lot, the defendants had built across Lee street a freight depot. An ordinance of the city of Montgomery, referred to in the bill, authorized the defendant to erect said buildings at such places, it being provided therein that the defendant should maintain private streets around the freight depot, whereby a way of approach to the union station from Lee street was secured. The complainant’s lot was 400 feet from the freight depot, and it was averred that said lot was so situated “as to make it very valuable for the purpose of a modern hotel and retail stores, and that the house now on said lot is used as a boarding house for the accommodation of the traveling public and residents of Montgomery, and that by reason of sa'd freight depot destroying .access on Lee street between the union depot and the property of complainant, travel is diverted from Lee street to other streets, and as a result thereof, complainant’s property is irreparably damaged and will never be valuable for the purpose above stated, * - * * and that the loss and injury” to complainant cannot be estimated in money, nor adequately compensated by pecuniary damages; that such appropriation of the street by the railroad was a continuing nuisance, “of special and particular damage to complainant beyond the injury the public generally has sustained,” and will continue to be more injurious in the near future. The prayer of the bill was .that defendants be enjoined from keeping possession of that part of Lee street now closed up by said freight depot, ,and that they be required to move said freight depot from across said street, and to abate the nuisance occasioned thereby. Held'. such bill is without equity in that it fails to show any right on the part of the complainant to maintain it; he having a full remedy at law for such injury .as the averments of the bill show he had sustained, and for which he sought redress.
    3. Equity pleading; when sufficiency of plea to a hill need not he determined. — Where a bill in chancery is without equity and subject to a demurrer interposed thereto, it is not necessary to determine the siifficiency of a plea in bar- filed by the defendant.
    Appeal from tbe City Court of Montgomery, in Equity.
    Heard before the! Hon. A. D. Sayre.
    The bill in this case was filed by J. M. Dennis against the Mobile! & Montgomery Railway Company and the I ouisville & Nashville Railroad Company. The particulars of the bill and the facts averred therein are sufficiently shown in the opinion.
    The defendants filed throe plea.». By the first two of these pleas the respondent set up that complainant, was estonped from maintaining the present suit, and in the third plea the respondents set up that the construction of a freight, depot, across Lee street was under rights granted by ordinance passed by the city of Montgomery, and that said ordinance was likewise ratified and confirmed by an act of the legislature, and that therefore such structure ivas legal, and that neither the complainant nor the court had power to abate tbe same. To eacb of these pleas the plaintiff filed separate exceptions.
    The respondents demurred to the bill upon several grounds, among which were the following: “1. The hill falls to show when complainant became tbe owner of tlie property on Lee street, nor are facts set forth in tbe bill showing, how or in what manner the erection of said freight depot injured or damaged or will injure or damage the property of complainant, or his rights in the premises. 2. The bill joins with complaint any other citizen having the same right as complainant, and it makes no case which entitles any other person . than complainant to join in his said bill. 3. Complainant does not show by bis bill that be suffers any injury other than that common to the public and other persons owning property on Lee. street. 4. Complainant does not show by bis bill any special injury to himself apart from that common to the public generally. 5. That complainant does not show in and by his hill that any of the peculiar rights pertaining to him as an abutting proprietor on t.lie street have been in any way injured or impaired, nor does complainant show that his easement of access, air and light in Lee street, has been substantially impaired or injured, or that any substantial or practical injury has been done him in these respects by the erection of the freight depot, and the use of a part of Lee street, complained of in the bill. 6. The bill shows that the elements of the, alleged injury and damage to complainant are remote and speculative and furnish no ground of complaint. 7. The hill shows that, the elements of the alleged injury and damage to complainant are remote and speculative, and furnish no* ground of complaint, and do not furnish grounds for granting the relief prayed by complainant, or any other relief that can be afforded him under the prayer.for general relief. 8. Because upon the facte stated by the bill it does not appear that any property of complainants has been taken, damaged, destroyed or injured, by the erection of said freight depot, or the use of said part of Lee street as complained of in the bill.”
    On the submission of the case upon the demurrers to the bill and exceptions to the pleas, the chancellor rendered a decree overruling the demurrers and sustaining the exceptions to the first and second pleas, and overruling the exceptions to the third plea. From this decree there were cross appeals, respondents assigning as error that portion of the decree of the court, overruling the demurrers to the hill, and in sustaining the exceptions to the first and second pleas; and the complainant assigning as- error that portion of the decree overruling his exceptions to. the third plea.
    O. O. Manbr and A. L. Tyson, for Dennis.
    It is well settled by.a long line of decisions and by text writers, that one sustaining a. special injury to- himself may maintain a bill to have a public nuisance abated.— Douglas v. City Gounoil, 118 Ala. 599; Kennedy v. Jones, 11 Ala. 63; ATininger v. Wonrood, 72 Ala. 277; Warren v. I.yons City, 22 Iowa, 351; Gilman v. Philadelphia, 3 Wall. 713. '
    The appellees and cross-appellants knew the character of their title to tills street, and the appellant owed them no duty to object to the construction of their freight depot. The appellees and cross-appellants knew they bad no title to this street. They knew they were creating a public nuisance when thev were constructing their depot across same, and they knew that the appellant, or a,ny one specially injured thereby would have a right to have same abated at a.ny time he saw fit, because prescription can never justify a nuisance. — Webb v. Demopolis, 95 Ala. 116; Da-bell v. Williams, 28 So>. Rep. 405.
    
      J. M. Faljkneu and Chas P. Jones, for Railroad Companies.-
    Complainant shows no injury other than that common to himself and the public, and therefore cannot maintain a bill in the present case. Complainant not being an abutting proprietor along that part, of Lee street occupied by the freight depot, and such use of the street not in any way peventing his access to his own property on Lee street, and not interfering with his easement of air or light, — none of his property has belen taken, injured or destroyed; and the injury or damages done his rights, if any, is not such a substantial one as authorizes a court of equity to interfere for the specific relief prayed, but entitles him only to his action at law for any injury he may have suffered. — High on Injunctions, §§ 762, 827; Wharton v. Hannon, 101 Ala. 554; Chambers v. Ala. Iron Go., 67 Ala. 352; Da,vis v. Soioellj 77 Ala. 262; MeBryde v. Sayre, 86 Ala. 458; 5 So. Rep. 791; Clifton Iron Co. v. Dye, S7 Ala. 468; Steele v. Sullivan, 70 Ala. 589; Gage & Co. v. M. & O. R. R., 84 Ala. 224; Whaley v. Wilson, 120 Ala. 502.
    it needs no- citation of authorities to show that no court, can treat as illegal, or as a nuisance, that which the: sovereign expressly authorizes, and when a structure, used for a public purpose, is legalized i'n a street bv the sovereign, no court has power to abate it; but must confine its functions solely to enforcing compensation. The law as to this is elementan’' and without dispute. The fact that property is devoted or dedicated to one public use presents no obstacle whatever to its being taken for another public use, which the legislature may deem of more importance. All property, that is now held, is subject to be taken for whatever public use the legislature may see fit to authorize. The power of the legislature in, this respect, is absolute, save that the taking must be for a public use and compensation must be made to the owner. The right, inheres in all governments as an attribute of sovereignty, and is absolute save as restrained by the constitution . This is the uniform language of the text books and the decisions. The question was settled in, Alabama nearly forty years ago, in A. & F. R R. v. Kenny, 39 Ala. 310. See also, People B. & O.'R. R-, 117 N. Y. 155; Mills on Eminent Domain, § 45; 1 Lewis’ Eminent Domain, (2nd ed.), § 335; 2 Dillon’s Municipal Corporation, (4th ed.), §§ 656-7; Woods on Railroads, (ed. 94), § 328, p. 842 et seq.; Cincinnati R. R: v. Bell Centre, 48 Ohio State, 273; Olcl Colony R. R. Co. v. Farmingham Water Go., 153 Mass. 561; fírainard v. Missisquouy R. R., 48 Vermont 107 ; Philadelphia Passenger R. R. Co’s Appeal, 102 Penn. State, 123.
   SHARPE, J.

In April, 1896, the city council of Montgomery adopted an ordinance: embodying an agreement with the defendants wherein it was stipulated among other things, that the defendant the Mobile and Montgomery Railroad Company should erect a freight-station building not less than 535 feet long and two stories high on a strip of land which extended across what had to that time, been a part of Lee street at or near the north end of that street, and also to erect on the north side of the freight building and parallel therewith a passenger depot building; 309 feet in length, and to maintain a private street not less than 35 feet wide along the south side of the freight building, so as to intersect an alley at that building’s east end, and .a street at its west end, and al.no to maintain a private street-extending past and between the two buildings; and it was further stipulated that in consideration of' those and other specified undertakings, Lee street should terminate Avhere it intersects the property of the Mobile and Montgomery Railroad Company, and that -the portion of it. extending; northward beyond that point of intersection, including the site of the proposed freight building, should he. discontinued and abolished as a street.

The foregoing and some other statements to be herein made are condensed from the! amended bill, including exhibits thereto, which comprise the ordinance referred to and maps of the locality. Words we use to indicate directions are to be! understood as only approximately correct.

Tlie' bill alleges in substance that one or the other of defendants has caused to be erected a, magnificent and imposing structure along Water street immediately at the head of Lee street along the Alabama river, known as the Union Depot, and that one or the other of the defendants lias caused to he built a two-storv freight warehouse across Lee street, and that these buildings are controlled and operated by the defendant, the Louisville & Nashville 'Railroad Company.' The map shows this union depot building occupied the site designated for the passenger depot in the ordinances mentioned, and that tlie freight warehouse is where, according to the ordinances, the freight building ivas toi be. The: hill further alleges in substance that the city council had no power to -abolish Lee street or to authorize the mainienanco of the freight building or the standing of cars in that part of the street and that the freight building prevents Lee, street from being used as a means of connection and travel from any part of the! city to the union depot, and that complainant owns a lot which fronts on die west side of Lee street. We quote from the: bill that this lot is “situated about 600 feet from said union depot and is located in such manner as to make it very valuable: for the purpose of a modern, hotel and retail stores, and that the house now on said lot is used as a boarding house, for the accommodation of the traveling public as well as the people residing in the city, and that by reason of said freight depot destroying the access on Lee street between thd union depot and the property of complainant, travel is diverted from Lee street to the other streets, and as a result thereof complainant’s property is irreparably damaged and will never be valuable for the: purposes above stated as long as said depot remains across said street, and his boarding house is now damaged in that a great portion of the traveling patronage of hoarding, houses is diverted to other streets and to other hoarding houses;” and “that the loss and injury to the orator in diminishing the value of his property facing and abutting on and along said street, can not hei estimated in money, nor adequately compensated for by pecuniary damages, and that such occupation and appropriation by said railroad companies of said street is a daily and continuing nuisance of special and particular injury to your orator beyond the injury which the public generally has sustained thereby and now greatly injures orator, and will continue to be more injurious and damaging to him in the near future. That said structure as well as closL iug up said Lee street greatly impairs not only your orator’s personal right to use and enjoy the street, hut the right of the general public as well to use and! enljoy the same.” The bill also alleges that the freight warehouse was built “without orator’s consent and without condemning or otherwise assessing the damages he has Sustained,” and that it is a “private nuisance, as well as an invasion of the vested rights of orator and the public generally.”

The prayer for relief is in substance that defendants be enjoined from keeping in possession the part of Lee street n:ow closed up by the warehouse and from, standing-cars or locomotives on or near that street and from making other use of that street than what is reasonable in moving ears and engines, and that they he required to remove the freight depot from across the street and to abate the nuisance occasioned thereby, and for general relief.

The jurisdiction which exists in equity for the restraint of public nuisances at the suit of a private individual is not original hut is supplementary, to remedies at law. It is exercised, only where the individual has a legal right and is without the adequate remedy for its enforcement. Hence a bill filed by a, private Individual for such purpose, must not only show the complainant will sustain injury distinct from that he will suffer in common with other members of the» public, such as would furnish the basis for an action at law, hut it must go further, -and show that the injury from the nuisance will he irreparable or will he such that complete compensation therefor cannot he obtained in a single action at law. — Wood on. Nuisances, § 820; Pom. Eq. Jur. §§ 1347, 1349; Elliott on Roads and Streets, § 665; 14 Ency. PI. and Pr. 3122, et seq.; 1 High on In.j. § 739. This principle also inheres in the law relating to private nuisances. — Rouse v. Martin, 75 Ala. 510; Nininger v. Norwood, 72 Ala. 277; Pom. Eq Jur. § 1350.

The injury will be considered irreparable where the resulting damage will be incapable of being measured by a pecuniary standard, and generally where without assistance in equity, the injured party must suffer invasion of his substantial rights without compensation. Elliott on Hoads and Streets, § 665. And there is inadequacy of legal remedy when reparation, if sought in the law forum, would involve a multiplicity of suits by the- same plaintiff. — Nininger v. Norwood, supra; Pom. Eq. Jr. § 243. And also where a judgment, if obtained, would be uncollectible. — High on Inj., § 717.

The averment of a mere conclusion, as to such inadequacy, or as to the irreparable character of the injury, without, the averment of facts to support the conclusion, is insufficient. — Kellar v. Bullington, 101 Ala. 267; Bolling v. Crook, 104 Ala. 130. For an injury to real property of a permanent character, without other special damage, the depreciation of the market value of the land furnishes the measure of damages and such damages are in a case, proper in other respects, recoverable in a, single action at law. — H. A. & B. R. R. Co. v. Mathews, 99 Ala. 24; Wood on Nuisances, 869; 3 Sedgwick on Damages, (8th ed.), 465, 476; Nashville v. Comer, 88 Tenn. 415; Ottenet v. etc. R. R. Co., 119 N. Y. 603.

The averments of the bill concerning the adaptation of complainant’s property for hotel and boarding house purposes, and the alleged diversion of patronage from the house, go no further than to show an impairment of the property’s value as resulting from the hindrance of a particular use. They raise no question as a loss of profits of business and do not show even that the complainant is conducting the boarding house. Besides an interference with the rights of travel common to him and the general public, alleged diminution in the property-value by reason of the situation of the freight ware house, constitutes the sole basis of complainant’s claim of' injury.

If it be assumed that the city council was without power to authorize the erection of the warehouse on the site it occupies and that the same forms an obstruction in Lee street and a nuisance, public or private, causing actionable injury to complainant’s property, yet the obstruction being permanent and no insolvency of defendants being shown, a single action gt law for damages would furnish a full remedy for such injury, and, hence, a resort to equity for the' mere purpose of abating a nuisance is unwarranted.

This case is unlike that of First National Bank v. Tyson, 133 Ala. 459, wherein the defendant.' in tire bill was enjoined from projecting columns of its building into the sidewalk so as to obstruct the light, air and view about the entrance of an adjoining building owned by the complainant in, that suit It is also unlike Douglass v. City Council of Montgomery, where at the suit of one held to be an adjacent -proprietor entitled to have view of and light and recreation from grounds, dedicated to- public use as a park, a bill was entertained to prevent the city from diverting, the park to- another use. That which will deprive of light, air or view about a building in the manner complained of in these two last mentioned casesi may or may not impair the value of a building thereby affected, but it may also produce and threaten damage to the form of continuous or recurrent discomfort which would be incapable of measurement by any pecuniary standard and which, therefore, could not be recovered for in an action at law. In Webb v. City of Demopolis, 95 Ala. 116, the suit was brought by the municipality and not as here by a private individual.

Complainant’s lot being, according to averments of the bill, 600 feet from the union depot, is shown by the map exhibited in the bill to be more than 400 feet from the warehouse, which distance locates the lot southward of the warehouse, and southward of the point where Tallapoosa street, running east and west, crosses at right angles, Lee street and the streets which run next to and parallel with Lee on the east side, and those which run next to and parallel with Lee on its west side. Thus the bill discloses, that over the space between, complainant’s lot and the union depot and the warehouse, access to and egress from Lee street and complainant’s lot, is afforded not only by way of the private streets, which defendants agreed with the city council to keep open along the warehouse, but by way of Tallapoosa street and its connections. Such being the situation of the lot, condemnation of it for purposes of the freight house would not have beent authorized by our statutes relating to the exercise of the right of eminent domain (New and Old Decatur R. Co. v. Karcher, 112 Ala. 676), nor has there been bad or threatened such taking of or proximate injury to the lot as entitles complainant to compensation or injunctive process unlder the; constitutional provisions relating, to eminent domain. — Lewis on Em. Dom. § 134; Buhl v. Fort St. Union Depot Co. (Mich.) 23 L. R. A. 392; Chicago v. Union B’l’dg Asso. 102 Ill. 379; 40 Am. Rep. 598; East St. Louis v. O’Flynn, 119 Ill. 200; McGee’s App. 114 Pa. 477; Glasgow v. St. Louis, 107 Mo. 204.

The bill lacks equity and was subject to the demurrer. The sufficiency of a plea to a, bill which is without equity is not determinable. The decree overruling the demurrer to the bill will lie reversed on the appeal of defendants, and in so far as a review thereof is sought on complainant’s appeal the: decree will be1 affirmed.

Tyson J., and Dowdell, J., not sitting.  