Brock v. City of Anniston , 244 Ala. 544 ( 1943 )

We are persuaded from a re-examination of this case that what has been said in the original opinion suffices as expressive of our view of the applicable legal principles involved. But out of deference to the earnest and forceful argument of resourceful counsel, we have considered a brief response appropriate.

In what has already been said we rested content with the statement that the contemplated improvement was not a "taking" of complainants' property within the meaning of Section 235 of our Constitution, but that the damages were consequential in character, though equally protected by this constitutional provision. Among the authorities cited was that of Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am. St. Rep. 930, which we thought here much in point. The Francis case has been subsequently cited with approval, and indeed, its soundness never questioned. Hobbs v. Long Distance Tel. Tel. Co., 147 Ala. 393, 41 So. 1003, 7 L.R.A., N.S., 87, 11 Ann.Cas. 461; McEachin v. City of Tuscaloosa, 164 Ala. 263,51 So. 153; City of Mobile v. McClure, 221 Ala. 51,127 So. 832. It was referred to in Hobbs v. Long Distance Tel. Tel. Co., supra, [147 Ala. 393, 41 So. 1005, 7 L.R.A., N.S., 87, 11 Ann.Cas. 461], as follows:

"Our own court has expressed itself very strongly as to the absolute right of the state to control and use the public thoroughfares for all public purposes, and against the right to enjoin a public improvement authorized thereon. Perry v. N[ew] O[rleans,] M. C. R. [Co.], 55 Ala. 413, 28 Am.Rep. 740; Western Ry. of Ala. v. A[labama] G. T. R. Co., 96 Ala. 272,281, 11 So. 483, 17 L.R.A. 474.

"In a more recent case, it has declared the absolute right of a municipal corporation to authorize a telephone company, in stringing its wires, to cut trees on the sidewalk, without liability to the abutting owner. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am. St. Rep. 930."

The opinion in the Hobbs case quotes approvingly the New Jersey Court to the effect that the right of "an abutter on the highway who holds the fee therein is subordinate to that of the public and so insignificant when contrasted to that of the public that it has been declared to be practically without the least beneficial interest." And other authority is cited and quoted to demonstrate that "with respect to lands over which streets have been laid, the ownership, for all substantial purposes is in the public." Like thought was expressed by Mr. Justice Sayre in his dissenting opinion in McEachin v. City of Tuscaloosa, supra, with supporting authorities noted. And the majority opinion discloses concurrence in his views in this respect, the point of difference being in the failure of the dissenting opinion to give full effect to Section 235 of our Constitution. The majority opinion states: "We would make no war upon the opinion of Justice Sayre * * * if section 235 of the Constitution did not exist, as it is a clear enunciation of the rule under the common law." [164 Ala. 263, 51 So. 154.]

And the opinion of the Vermont Court in Skinner v. Buchanan,101 Vt. 159, 142 A. 72, cited by complainants, clearly demonstrates that the matter of ownership of the fee to the center of the street is "comparatively unimportant" upon the question here considered. The reasoning of the Iowa Court in Liddick v. City of Council Bluffs, Iowa, 5 N.W.2d 361, 368, to which complainants direct our attention, appears to support a contrary view. But no necessity arises to look elsewhere for authority. Our own decisions have definitely settled the question that damages of the character here involved are consequential and that such an improvement does not constitute a "taking" of property as here argued.

But counsel lay much stress also upon the Liddick case in their further insistence that this is a city improvement and, therefore, within the influence of Section 235 of our Constitution. In the original opinion, looking through form to substance as we should, we reached the definite conclusion that the City of Anniston had no part in this project and apparently no interest in it other than its cooperation with the military authorities under the direction of the Federal Government in the establishment of an access road to the military reservation at Fort McClellan. And, indeed, we stated that the City's acquiescence was in a matter which it was powerless to prevent, had the City authorities been so inclined. We feel constrained upon reconsideration of the question to adhere to that view. The Liddick case presented quite a different situation. We were careful to observe that if this record disclosed any clear indication that the City of Anniston was in any manner involved in this improvement and that it adopted this method as a subterfuge to evade constitutional liability, we would not hesitate to so declare, and a different result would doubtless follow. Such was the situation presented to the Iowa Court in the Liddick case. The opinion goes into much detail concerning the activity of the City and the construction of the viaduct there involved, which discloses that the City not only instigated the project, but actually participated therein throughout. The conclusion upon the facts by the Iowa Court may well be summarized in one sentence found in the opinion, as follows: "The record fully establishes that the city has been the chief and most persistent proponent of the viaduct project."

We have been cited also to Irwin Fishing Hunting Club v. Cobb, 235 Ala. 394, 179 So. 183, and Sherlock v. Mobile County,241 Ala. 247, 2 So. 2d 405, which have been read with care. But we are unable to see that these authorities have application here, or in any manner militate against the conclusion reached.

But we consider further discussion unnecessary. We have carefully re-examined the questions here urged upon us, both in brief on application for rehearing and the supplemental brief in support thereof, and find ourselves unpersuaded that the original opinion was incorrect. The application for rehearing will accordingly be denied.

Application overruled.

All the Justices concur.