Summary
In Duckworth et al. v. Town of Robertsdale, 248 Ala. 432, 28 So.2d 182, it was held, that a deed which "purported to convey a segment of a public street, was ultra vires and void, and building constructed and maintained thereon was a 'public nuisance', abatable at the instance of municipality by bill in equity, and municipality was not required to resort to an action at law."
Summary of this case from City of Decatur v. RobinsonOpinion
1 Div. 268.
December 5, 1946.
Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.
Hybart Chason, of Bay Minette, for appellants.
A bill in equity will not lie for the divestiture of the legal title to lands and recovery of damages for use and occupation, as complainant has an adequate remedy at law. Jordan v. Phillips, 126 Ala. 561, 29 So. 831; Turner v. Mobile, 135 Ala. 73, 33 So. 132; W. T. Smith Lbr. Co. v. Jernigan, 185 Ala. 125, 64 So. 300, Ann.Cas.1916C, 654; Howison v. Baird, 138 Ala. 129, 35 So. 62; Belcher v. Scruggs, 125 Ala. 336, 27 So. 839.
Hubert M. Hall, of Bay Minette, for appellee.
A municipality has no inherent power to authorize obstruction of streets. The deed was void ab initio. Mobile v. L. N. R. Co., 124 Ala. 132, 26 So. 902; Birmingham v. Holt, 239 Ala. 248, 194 So. 538; Costello v. State, 108 Ala. 45, 18 So. 820, 35 L.R.A. 305; Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; Nashville C. St. L. R. Co. v. Hulgan, 219 Ala. 56, 121 So. 62; Birmingham R. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A., N.S., 597, Ann. Cas.1915C, 863. Erection of the building in the street constituted a nuisance. Cassimus v. Levystein, 176 Ala. 365, 58 So. 280; McIntosh v. Moody, 228 Ala. 165, 153 So. 182; McCraney v. Leeds, 241 Ala. 198, 1 So.2d 894; Birmingham R. Co. v. Smyer, supra. Municipalities may maintain bill in equity to abate or enjoin a public nuisance. Nat. So. Products Co. v. Tuscaloosa, 246 Ala. 316, 20 So.2d 329; Smith v. Opelika, 165 Ala. 630, 51 So. 821; Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Reed v. Birmingham, 92 Ala. 339, 9 So. 161; Prichard v. Alabama Power Co., 234 Ala. 339, 175 So. 294.
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.