Opinion
6 Div. 887.
May 17, 1923.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, for appellant.
If the tracks were built pursuant to lawful authority prior to the incorporation of the territory embracing Thirty-Second street, the city was thereafter powerless to force removal. Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A. (N.S.) 607. As long as a street or road remains outside the limits of a municipality, a railroad company has authority to occupy same. Code 1896, § 1164; Code 1886, § 1581; Code 1876, § 1842; Code 1907, § 3493; Perry v. N. O., M. C. R. Co., 55 Ala. 413, 28 Am. Rep. 740; 33 Cyc. 191; Mobile, etc., Ry. Co. v. Ala. Mid. Ry., 116 Ala. 51, 23 So. 57; Columbus, etc., R. R. v. Witherow, 82 Ala. 190, 3 So. 23.
London, Yancey Brower, of Birmingham, for appellee.
The unauthorized obstruction of a public street, so as to render it unfit for use by the public, is a public nuisance. Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; Reed v. City of Birmingham, 92 Ala. 339, 9 So. 161; Sloss Co. v. Johnson, 147 Ala. 384, 41 So. 907, 8 L.R.A. (N.S.) 226, 119 Am. St. Rep. 89; Troy v. Watkins, 201 Ala. 274, 78 So. 50; Elliott on Roads Strs. §§ 802, 1090. Dedication of Thirty-Second street to the public was completed by the making of the map and sale of lots thereby. Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; 18 C. J. §§ 43, 69, 149. Extension of the city limits was an acceptance of the dedication. Webb v. Demopolis, supra.
It may be conceded that the making of the map disclosing Thirty-Second street and the sale of lots thereby was a dedication of said street as a public highway (Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62), and that the extension of the city limits so as to include this territory was an acceptance of the dedication by the appellee; but, from aught appearing from the bill of complaint, the two extra or outside tracks of the appellant, which appellee seeks to have removed, were laid under the authority of section 3493 of the Code of 1907, with the approval of the county authorities, before the said territory was annexed or became a part of the city of Birmingham, and, if such was the case, the laying of said tracks was lawful, and the same do not therefore create a nuisance. It has been generally held that the property rights of a railroad operating in unincorporated territory and acquired under county authority are not affected by the annexation of such unincorporated territory to an adjoining municipality. Belle v. Glenville, 27 Ohio Cir. Ct. R. 181; Westport v. Mulholland, 159 Mo. 86, 60 S.W. 77, 53 L.R.A. 442; Jersey City R. R. v. Garfield, 68 N.J. Law, 587, 53 A. 11; Johnson v. Owensboro R. R., 36 S.W. 8, 18 Ky. Law Rep. 276. See, also, note to our own case of Cloverdale Homes v. Cloverdale, 47 L.R.A. (N.S.) 608 ( 182 Ala. 419, 62 So. 712) . In this last case we held that Noble should not be enjoined from laying his service pipe so as to connect with the gas main upon the evident theory that so long as Cloverdale permitted the gas main to remain under the surface of the street Noble had the right to connect therewith, and that he could do so without interfering with the general use of the street. The opinion does state, however, that the municipality could condemn or cause the removal of the gas pipe or main, upon the evident idea that, even if the county authorities consented to the laying of the same upon or under the county highway, they had no authority to do so, as the pipe in question is not covered by section 3493 of the Code of 1907, while said section does authorize the laying of the tracks in question.
Whether or not the tracks in question were laid before the annexation the bill does not inform us, or whether or not they were laid after the adoption of the added portion of section 22 of the Constitution of 1901, so as to authorize a revocation of the right, and whether or not there has been a legal revocation, even if the right was acquired, the averments of the bill do not inform us. The bill was subject to the respondent's demurrer, grounds 7, 11, 12, 13, and 14, and the trial court erred in overruling same, and the decree of the circuit court is reversed, and one is here rendered sustaining said demurrer, and the cause is remanded.
Reversed, rendered, and remanded.
SOMERVILLE, MILLER, and THOMAS, JJ., concur.