I concur in what has been written by SOMERVILLE, J., in respect to the manner of review in this cause. Bearing in mind the fact that appellant filed its bill to redress the individual wrong and injury done to it by the nuisance complained of, I concur also in the disposition of the cause indicated in the opinion of MAYFIELD, J. No contract rights are involved (Morris v. Tuskaloosa Mfg. Co., 83 Ala. 565, 3 So. 689; White v. Harrison, 81 So. 5654), and, while the rule established by the great weight of authority is that where the existence of a nuisance is clearly shown, togther with the fact that it is causing another substantial injury for which there is no adequate remedy at law, the injured person is entitled, as of right, to an abatement of the nuisance, without reference to the comparative benefits conferred thereby or the comparative injuries resulting therefrom (20 R.C.L. 481); this rule resulting from the legal fact that, if the owner of property affected refuses to treat as permanent a nuisance which is in law and in fact abatable or to be satisfied with one assessment of damages (Sloss-Sheffield Co. v. Mitchell,161 Ala. 278, 49 So. 851), he is entitled to have, not only the value of his property as it was, but to have the undisturbed use of it and of the street in connection with it, my judgment is that appellant is not entitled to injunctive relief. Complainant's property was and is located on the south side or Seventh street, opposite the south end of Le Grande avenue, which it faces and with which it is of equal width. The relief prayed against the town of Luverne, the sole party defendant to the original bill, was that it be required to remove the obstructions placed by it in Le Grande avenue. Complainant further alleged in his original bill that the town of Luverne, by a contract entered into by it for a term of years with the Crenshaw County Gin Company, had permitted said company to erect a shed over a part of Seventh street which interfered with the free use of that street by the public and greatly damaged complainant. By amendments the bill was made to show that the shed on Seventh street at every rain concenrated the water so as to cause it to flow over and upon complainant's lot, doing injury thereto in several ways, and the Crenshaw Company was brought in as a party defendant. The relief prayed against the added defendant was, in effect, that it be required to remove the shed from the street. The proof showed that this shed was on the north side *Page 370 of Seventh street and adjacent to the east side of Le Grande avenue. The proof also showed, and the chancellor found upon personal inspection, that the flow of water had not been diverted from its natural course. I see no sufficient reason for disturbing the chancellor's conclusion as to that. The question then is whether by reason of any other fact complainant may be entitled to injunctive relief.
The municipal authorities had no right or power to obstruct the streets of the town nor to license any obstruction thereof (Costello v. State, 108 Ala. 45, 18 So. 820,35 L.R.A. 303), and as against the public — the interested public not by any means being limited to the citizenship of the municipality (Alabama Western R. R. Co. v. State ex rel. Attorney General,155 Ala. 491, 46 So. 468, 19 L.R.A. [N. S.] 1173, 16 Ann. Cas. 485) — the municipal authorities have not, and, by laches, lapse of time, or any consideration of public or private convenience whatsoever, can never acquire, any right to the continued maintenance of the structures against which the complaint is directed. Webb v. Demopolis, 95 Ala. 116,13 So. 289, 21 L.R.A. 62. These structures, in my judgment, may at any time, and without regard to the inconvenience involved, be removed on a bill filed by the state or some one acting by its authority. Alabama Western R. R. Co. v. State ex rel. Attorney General, supra; Hoole Paullin v. Attorney General, 22 Ala. 190. See, also, in this connection, Costello v. State, supra.
The text-books and adjudicated cases are agreed that for an obstruction of a public and common right of way no private action will lie, unless it be alleged and shown that the party complaining has thereby suffered injury peculiar to himself, that is, different in kind and degree from that suffered by the public, and the reason for this rule, accepted from the beginning as sufficient, is that the offender should be punished by indictment as for the maintenance of a common nuisance, or the nuisance be abated by bill in equity in the name of the state; for otherwise suits would be multiplied intolerably. Walls v. Smith, 167 Ala. 138, 52 So. 320,140 Am. St. Rep. 24, where text-writers and adjudicated cases are cited. In Sloss-Sheffield Co. v. McLaughlin, 173 Ala. 76,55 So. 522, it was said that, in the practical solution of the question as to peculiar injury alleged to be the result of circuity of travel caused by an obstruction in a public highway, everything depends upon how far the obstruction may be away from the complainant's property, what may be on the other side, and, in short, upon the relations developed by use between complainant's property and the transobstruction country. On the evidence in this case I find that Le Grande avenue, though dedicated to the public upon the laying out of the town of Luverne, has never been kept up as a public thoroughfare, that no relation between complainant's property and those parts in the vicinity of the avenue and beyond the obstructions complained of has ever been established through or by means of the avenue, and that complainant has therefore suffered no peculiar injury by reason of these obstructions. As to the shed, it does not at all affect access to or egress from complainant's property, nor does it in the least affect intercommunication between complainant's property and any other place or places whatever. Nothing remains, then, but the question of view. It is not the purpose of the law to protect unlimited view along public streets or highways. The view which the courts protect is not the view which answers the desire for beauty or the demands of an aesthetic taste, but it is the view which affects the practical utility or comfort of property as a place of business or residence. I find on the evidence that the view from complainant's property is not affected in a legal sense by the obstructions in question, and therefore that he is not entitled to relief on that ground.
For the reasons stated, my opinion is that complainant's bill was properly dismissed, and that the decree should be affirmed.
4 202 Ala. 623.