Niehaus & Co. et al. v. Cooke

Niehaus & Co. et al. v. Cooke. Bill in Equity for an Injunction. 1. Improvement of sidewalk of municipality; can not injure adjoining property without first making compensation therefor; MU in equity for injunction. — A municipality, or the contractors for the making of such improvement, can not, in paving a sidewalk, injure a stone wail or other fences inclosing a lot abutting upon said sidewalk, without first making just compensation to the owner of said property for such injury; and a bill filed by such owner seeking to restrain the doing of such work, without paying to the complainant the damages incident thereto, contains equity. 2. Injunction; when dissolution thereof upon the denial of the answer within the discretion of the chancellor. — Where a bill seeking an injunction is’ filed against a non-resident, as to whether or not a preliminary injunction issued should, upon the denials of the answer, be dissolved, is addressed to the discretion of the -chancellor who should weigh the relative degree of injury to the parties, which would probably ensue from the maintenance of the injunction on the one hand, and its dissolution on the other. 3. Bill for dissolution of injunction; insufficiency of affidavit attached to answer. — Where a bill seeking an injunction is filed against a city, and individuals who have entered into a contract with said city to do a certain work, and the de-' fendants jointly file a sworn answer denying the grounds upon which the injunction is asked, an affidavit attached to said answer which is signed by the mayor of the city and simply states “that the statements contained in the foregoing answer that are stated as of knowledge [he, the affiant] knows to be true, and that those stated on information he believes to be true,” is an insufficient verification of said answer. Appeal from the Chancery Court .of Colbert. 'Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellee, Stockton Cooke, against the appellants, B.- Niehaus' & Co., a firm composed to B. Niehaus and J. C. Piraldo, and B. Niehaus and J. G. Firaldo individually, and the city of Sheffield. It Avas averred in the hill that the complainant Avas the oAvner in fee of two1 certain described lots in the city of Sheffield, which fronted upon AA-hat is known as Montgomery avenue in-said city; that at the time he had purchased said lots there had been constructed by the fornica' OAvner thereof, in- accordance with the requirements and ordinance of the* city of ¡Sheffield, a sidewalk in front of said lots on Montgomery avenue, on the grade established by the authorities of said city, properly curbed and covered Avith chert and gravel; that after the complainant became the owned." of said property, in compliance Avith,the ordinance of said city, he covered the sideAAralk at his OAvn expense with additional chert or gravel; that said sideAvallc has been ever since-1 and is now, proper and convenient sideAvalk for the use of the public, and the owner of said property, and is sufficient and propea." for all uses and pui*po«es; that Avhen said sidewalk was constructed by the owmiers of said lots it became necessary for said owner to construct on one of the lots and contiguous and along the side of said sideAvalk, for the full front of said lot, a stone Avail at great expense, which said Avail Avas being used as a means of inclosing complainant’s lot; that some time in the year 1901 the city of Sheffield, by its city council, passed an ordinance Avhtíreby the owners of certain property, including the lots- described in the bill, Avere required to lay concrete pavement, in front, of their property in accordance Avith certain specifications in said ordinance; that in order for the complainant to comply Avitili said ordinance, it Avould be necessary to destroy and greatly injure the sidewalk theretofore built by the complainant and the former owner of the property, and the construction of said sidewalk “avíII also greatly injure and in case of caving, partially destroy the said stone AA^aill inclosing the lot of complainant, upon which it is built, and will otherwise greatly injure the complainant’s property.” It was then averred in the bill that the said city of “Sheffield and the city council thereof are wholly without authority to pass and enforce the ordinance referred top that the, same Avas beyond the authority and pOAvers of said city, was in violation of the constitution of the State and the constitution of the United States and was wholly null and void; that the city of Sheffield is seeking by and under said ordinance to take, injure or destroy the said property of complainant, in said sidewalk and stone Avail inclosing its premises Avithout compensation to complainant in such injury or destruction, and Avithout any proceeding having been taken to ascertain wbat compensation to your orator would be just therefor.” It Avas then- averred in the bill thatl in the year 1902 the city of Sheffield entered into a contract with the defendant, B. Niehaus & Cop for the construction and laying Avith concrete of the sidewalks mentioned in said ordinance at the expense of-the OAvners of the property before aa-McIi the sidewalks were proposed to be laid, which included the property of the complainant; that no resident security hm been taken for1 Niehaus & Co., and the persons who composed said firm are each nonresidents of the State “having no substantial property in said State amid are unable to respond in said State to any judgment against them for damages, nor could any final process from any of the: courts in and of this State reach any property of the said defendants.” It was then averred that said Niehaus Avas threatening to go upon the property ini front of complainant’s property Avith labor and teams and destroy or injure said complainant’s sideAvalk, remove the gravel and, chert which had been place thereon, injure the stone wall inclosing the complainant’s, said lot, Avithout any compensation to said complainant and unlaAvfully and in violation of complainant’s rights; and are seeking, under their alleged contract Avitli the city of Sheffield to create and fasten a charge or lien or incumbrance on the complainant’s said lots; and that complainant is wholly remediless at laAv. The prayer of the bill was for an injunction restraining and enjoining the defendants and each of them, or their servants, agemits and officers “from injuring or destroying tihe sidewalk in front of said lots * * * or the curbing thereof, or the stone: wall inclosing the premise* of your orator.” There was also- a prayer for general relief. Upon the filing of this bill a preliminary' injunction was issued upon the; complainant giving bond as required by law. The; defendants, B. Niehaus & Co-., and B. Niehaus and J. <}. Piraldo, individually, and the city of Sheffield, filed a, joint answer to the hill. In this answer they admitted the passage of the ordinance of the city, the. making of the contract between the defendants, and that the sidewalk of chert or graved had been built in front of the compla.inantfs lots, and that there was a stone*' wall a,round one of said lots,; but the defendant’s deny that said sidewalk wa,s built according to flu*: established grade and was a-proper amid convenient sidewalk. They further deny that the changes required by said ordinance in front of said lots “would in no way destroy or injure said sidewalk or the interests of complainant therein, but they allege the fact to be that a, compliance with said ordinance: would greatly improve: the sidewalk,’’ and will enhance the- value of complainant's property. Defendants further deny that the city of Sheffield was, without authority to pass and enforce- said ordinance, or that the same was, in violation of the, constitution of the State and of the United States, and they further deny that the defendants are seeking, to take, injure or destroy any of the property of the complainant, or that complainant, is, entitled to any compensation growing out of the work contemplated by such ordinance. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently shown ini Ihe opinion. This answer1 was sworn to by an affidavit made before a notary public., which was in words -and figures as follows: “Before me, Joseph R. -Coleman-, notary public in and for tin; State and county aforesaid, personally appeared R. J. Thurmond, Jr., mayor of the city of Sheffield, who- being by me duly sworn deposes and says that the statements contained in the foregoing answer that are stated as of knowledge he knows to be true and that those stated on information and belief he believes to be true. [Signed] It. J. Thurmond, Jr., Mayor.” There was a motion made to dissolve the injunction for the want of equity in the bill and upon the denials in the answer; and upon the submission of the cause upon tiehis motion the chancellor rendered a decree overruling it. From this decree the respondents appeal, and assign; the rendition thereof as error. Kirk, Carmichael & Bather, for1 appellants, cited 24 Am. & Eng. Ency. Law; 39 Am. & Eng. Ency. Law, 74, 80, 91; Acts of 1892-3, p. 144; Montgomery v. Town- . send, 80 Ala. 492. Thos. R. Eouliiac, contra. The Sheffield ordinance is unconstitutional because, in imposing the burden no measure is furnished for ascertaining the damage or benefit. — Const, of Alabama, 1875, Art. XIV, § 7; Art. XII, §§ 223, 235; Montgomery v. Foster, 133 Ala. 587. The additional burden on property imposed against the act of the owner is a taking or injury. — Montgomery v. Townsend, 80 Ala.-492; Montgomery v. Maddox, 89 Ala. 166-7-8; M. & G. 11. Li. Go. v. B. S. & T. R. R. Go., 96 Ala. 577, 579; Norwood v. Baker, 172 TJ. S. 269; Montgomery v. Birdsong, 126 Ala. 651; Mayor v. Klein, 89 Ala. 461; Pimpolly v. Green Bay Go., 13 Wall. U. S. 166; Montgomery v. Foster, 133 Ala. 587. Where no means for ascertaining the injury and damage and assessing compensation is provided in the charter or paving act of the legislature, there is not due process of law for taking a citizen’s property. Lent v. Till-son, 140 TJ. S. 316; Wilburn v. MoGalley, 63 Ala. 436; Head v. Amoskeag Go., 113 U. S. 26; Hogan r. Reclamation District, 111 U. S. 713-4-5; Pearsons r. You'd all', 95 TJ. S. 296; Pnmpelly v. Green Bay Go., 80 Ü. S. 166. Due1; process of law signifies an opportunity to be heard and determination on evidence. — Simon v. Graft, 182 U. S. 434-5-6; L. & N. R. R. Go. v. Schmidt, 177 U. S. 230; Simon v. Graft, 118 Ala. 636. [MAJORITY — TYSON, J.] TYSON, J. —This appeal is prosecuted from a decree overruling a motion to dissolve an. injunction because o<f want of equity in the bill amid upon the denials in the answer. There; is much averred in the bill challenging the right of the respondents to tear up- the chert and gravel upon the sidewalk fronting the property of complainant! which was- placed there by him and his predecessor in ownership of the lots. Whatever may be the rights of the respondents with respect to- this matter, a question we do not decide, if it be conceded that- they have such ai right, it is entirely clear that they have no- right to- injure the stone wall enclosing the lot belonging to- the complainant in the prosecution of the construction! or enlargement of the improvements proposed to be put upon the sidewalk, without first making just compensation for such injury. — Const. (1875), Art. 14, § 7; Const. (1901), Art. 12, § 235; City Council of Montgomery v. Maddox, 89 Ala. 181; Town of Avondale v. McFarland, 101 Ala. 381; City Council of Montgomery v. Lemle, 121 Ala. 609. And to- the effectuation of preserving the complainant’s right to the compensa,tion, guaranteed to- him by the constitution, to be paid to- him before the injury is done, he has á remedy in equity, “by invoking the injulnctive aid of a court of chancehy wholly regardless- of the solvency or insolvency of the municipal corporation and of the inquiry whether! or not lie could recover and realize compensatory damages in an action at law.” — City Council of Montgomery v. Lemle, supra. The bill is mot without equity. Should the injunction have been dissolved upon the denials in, the answer? “When a, bill avers facts, the burden of proving which is entirely on complainant, if the sworn answer is made o-n knowledge and contains an unequivocal denial of the charges on which the right to an injunction rests, the general rule is that the injunction must be dissolved on the denials in the answer. — 3 Brick. Dig., 352, § 303. Bult even this rule is not universal. — Jackson v. Jackson, 91 Ala. 294. In cases of this character this rule is'mo-re flexible, yielding more to- the particular circumstances, and the chamcellor has a large discretion over the subject, and notwithstanding the denials of the answer, may retain the injunction until a final hearing of the cause. — Chambers v. The Ala. Iron Co., 67 Ala. 353; Mabel Mining Co. v. Pearson Coal & Iron Co., 121 Ala. 567; Birmingham Traction Co. v. Birmingham Railway Co., 119 Ala. 129. In Harrison v. Yerby, 87 Ala. 185, the exception to the general rule ivas recognized and enforced, and in weighing the relative degree of injury or benefit to the parties which would probably ensue °from the maintenance of the injunction on the one hand and its dissolution on the other, the court Avas controlled to a large extent by the fact that one of the respondents Avas a noim-resident of this State. In the bill in this cause, it is averred that the two respondents who- Avere about to- actiA'ely begin the tearing away the chert or gravel on the sidewalk and to- injure the complainant’s lot “are non-residents of the State of Alabama, have no substantial property in this State and are unable to respond in this State to any judgment against them for damages; nor could any final process from any of the courts of and in this State reach any property” of theirs. The answer admits their non-residence, and the allegation that they have no substantial property in this State. It is true it denies their inability to respond to any judgment that may be rendered against them. Wo are of the opinion that this circumstance is a sufficient justification of the discretion exercised by the chancellor as to those respondents. As the motion to- dissolve Avas joint, as is likewise the appeal and the assignments of error, the decree being proper as to- two of the respondents, it must be held proper as to the other respondents without regard to whether it is right or wrong. But another reason may be assigned justifying the action of the chancellor. It is undoubted that the motion to dissolve the injunction on the denials in the answer could not be entertained by the chancellor unless the answer Avas sworn to. — Rule 32 Ch. Prac., p. 1209 of Code. And the answer of a corporation is not an exception tb the rule. — M. & M. R'y Co. v. Ala. Mid. R’y Co., 123 Ala. 163. The manifest purpose of this requirement is to give to- the ¿lomáis in the answer relied upon to- defeat the equities of the bill, the weight and credence of evidence of their truth, upon which the chancellor is calk'd upon to act. The credence which is to- be given this evidence necessarily depends upon the knowledge possessed by the affiant making the verification:, of the facts alleged. It is apparent from the allegations of the answer that facts without reference to whether they were within the knowledge of one respondent and not in the knowledge of the other except apon information gained fro-in the other, are indiscriminately alleged as* upon the knowledge of all the respondents. To illus-rate, to- the charge made in the bill that Niehaus and Piradlo are threatening with laborers and teams to injure the stone Avail enclosing complaiinant’s lot, the respondent’s answer1, after admitting that Niehaus and Piraldo intended to go- upon the sidtewalk in front of complainant’s property Avitfti laborers and teaans, denies that they threatened or intended in ary AAray to injure the Avail. It Avas impossible for the city or rather its representatiAres, to kno w these facts, except upon information) derived from Niehaus and Piraldo. The agent of the city representing it in the p-reparaion of the ans-Aver, could not, therefore, state positively and primarily the existence of those facts. Furthermore, the respondent, the city of Sheffield, being a corporation, acting, of necessity, in all matters by and through an agent on1 agente, can have no knowledge of any fact, except through its pro-perly accredited agent and, for that matter, could not make am -antover in any other Ava.y. The ansAver does not disclose who- its representative Avas, in making -the statements contained in it, or that he was acquainted Avith the facts stated. Nor are we aided in this matter by the affidavit. If the affiant AArho> made the Arerification represented the municipality in making the statement of facts contained in the aaiSAver, this, is not shown by the affidavit, nor is it shown by the affidavit that! he was acquainted with the facts. It Avas said in The Fulton Bank v. The N. Y. & T. Canal Co., 1 Paige, 311 (cited approvingly in Griffin v. The State Bank, 17 Ala. 258): “The case of a corporation defendant is an anomaly in the practice in relation to the dissolution of an injunction. In most cases, the injunction is dissolved as matter of course, if the answer is perfect and denies all the equities* of the bill in the points upon which the injunction! rests, it is not!, however, a. matter of course to dissolve thp injunction where the defendant acts in a representative character and founds his denials of the equity of the hill upon information and belief only * * *. But no dissolution of the injunction can be obtained upon the answer of a corporation, which is not duly verified by the oath of some officer of the. corporation, or other person who- is 'acquainted Avith the facts contained therein.” The fact, that Niehaus. or Biialdo, Avho> aire charged as being actively engaged in the wonk which if carried out AA'ould result in injury to complainants lot and who know better than any one else Avhat they intended to do, did not also malee oath to the answer, is a circumstance worthy of consideration in giving weight and credence to the denials contained in, it. Furthermore, they should not, be allowed to support their denials for the purpose of giving probative force to them by hearsay evidence. Especially is this true Avhen each of them are fully acquainted Avitli facts alleged in the bill and can depose primarily to their existence or nonexistence. And so far as the respondent, the city of Sheffield, is concerned, we feel that we are authorized in saying that'the ansAver discloses that the affiant kneAV nothing of his. oavh knowledge of the facts upon Avhich the denials are predicated going to the equity of the bill pointed out by us. It, too, relied upon a mere hearsay affirmation, Avherai primay evidence was attainable. Upon the question under consideration the case cannot possibly be stronger than one in Avhich the answer denies the equity of the bill upon information and belief. — Calhoun v. Cozens, 3 Ala. 503; C. & W. R’y Co. v. Witherow, 82 Ala. 194 With this dubious proof in support, of the denials of the. ansAver, it cannot be said that the court cannot see a good reason in the facts disclosed, aaíiv the injuncton should be retained. — Rembert v. Brown, 37 Ala. 671. Affirmed.