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[Montgomery Light & Water Power Co. v. Citizens' Light, Heat & Power Co.]

contract, (or condition prescribed by the city ordinance) while, if there were no contract, or ordinance prescribing conditions, the allegations would have to show facts from which the law would infer, actionable injury.

So far as the public streets of a city are concerned, neither party can assert any exclusive rights thereon. Under the constitution of Alabama, it is not within the power of a municipal corporation to grant any exclusive privilege, in its streets to any corporation, so as to deprive itself of the right to revoke the same and grant like privileges to another.-Constitution, § 22; Birmingham & P. M. R. Co. v. Birmingham S. Ry. Co., 79 Ala.

465.

Though. unquestionably, the municipality, after granting to a corporation the right to use its streets for a public utility, has the right, in granting like privileges to another, to provide such restrictions and regulations as are necssary to prevent injury to the property of the first occupant, and to prevent an interference with its discharge of the duties assumed to the public, and, where such inference involves danger to the public, the courts will prevent it, even without any ordinance.-Consolidated Electric Light Co. v. Peoples' Electric Light & Gas Co., 94 Ala. 372.

In the present case it is shown that the defendant company, was granted by the city of Montgomery like rights and franchises on the streets of the city as had been granted to complainant, with a special proviso "that the poles and wires of said Citizen's Light Heat & Power Company should not be erected and strung so as to interfere with the poles and wirs of the complainant company.'

Taking the original and amended bills together, and for the present pretermitting all questions about the later ordinance of the city council, the allegations upon which the prayer for an injunction is based, are, that complainant "is informed and believes, and, upon such information and belief avers the facts to be that the said Citizen's Light, Heat & Power Company, intends to proceed and string its wires," (on poles already erected on Dexter Avenue, and make necessary connec

[Montgomery Light & Water Power Co. v. Citizens' Light, Heat & Power Co.]

tions therewith) which, it is alleged "will interfere with the poles and wires of your orator, and irreparably damage your orator's wires, and make it impossible for your orator to furnish light," etc., according to contract; and second, it is alleged, in the amendment, that said defendant has connected its wires with the place of business of Dan Dowe, and is furnishing hun light, and that "it is dangerous to the life and property of the citizens of Montgomery for the defendant to be allowed to connect its wires" in the manner above stated.

These averments are mere conclusions of the pleader, and do not set out facts, upon which issue can be joined, testimony taken, and a decision had as to whether irreparable injury will be inflicted, or danger incurred by the stringing of the wires, or whether, in the terms of the ordinance, the poles and wires of complainant will be interferred with.-Hays v. Ahlrichs, 115 Ala. 239; Schloss v. Steiner, 100 Ala. 152; Birmingham Traction Company v. Sou. Bell Tel. & Tel. Co., 119 Ala. 151.

So it seems to this court that the court below was correct in saying that much of the bill was devoted to unnecessary complaints about the resolution passed by the city council, of May 20th, 1904. That resolution seems to add nothing to the franchise previously granted to the defendant, further than to recognize the work already done by defendant, in so far as to allow its wires to be connected temporarily, (not permanently as appellant contends). The resolution requires an obligation by defendant, "at the expiration of 20 days to replace said wires in accordance with such ordinances and regulations of the city code, as may then be in force;" conse quently, it was not a resolution of that "permanent character" requiring the concurrence of a majority of the entire board, and requiring it to be introduced at one sitting of the board and not passed until the next.

The inference would seem to be that if it was about to construct under this resolution, it would be in accordance with its requirements that the poles and wires of the complainant were not to be injured or interfered with, in accordance with the original ordinance, and that, at

[Montgomery Light & Water Power Co. v. Citizens' Light, Heat & Power Co.]

the end of 20 days, said wires were to be replaced in accordance with further directions by the city council. Certainly, without some definite statement of facts; showing how the work was being done, or other facts, from which, if true, the court could say that such injury would be the natural result, the averments of the bill are insufficient and the demurrers were properly sus tained.

As to the correctness of the decree of the court, in sustaining the motion to dissolve the preliminary injunction: In addition to the defective averments of the bill, the answers of the respondent, make full denial of the allegations of injury and of danger. Then the question arises whether it is proper for the court to continue an injunction against one party at the instance of another, merely because the latter avers in general terms, that the former, in the legitimate pursuit of its own business is going to so conduct it, as to injure the latter, while the former has given solemn assurance that it will not do so, and, in its answer reiterates the assurance that it is not going to so construct the instrumentalities of its business, as to injure the other.

The general principle of law is that when the sworn answer denies the allegations of the bill upon which the relief is sought, the injunction will be dissolved.-Hays v. Ahlrichs, supra; L. & N. R. Co. v. Bessemer, 108 Ala. 239, 249; Hartley v. Matthews, 96 Ala. 224; Jackson v. Jackson, 91 Ala. 292.

It cannot be said that the constructing of the instrumentalities of defendant on the streets is a nuisance. The ordinance of the city shows that they are not erected without authority of law, and there are no allegations of facts, which show them to be a nuisance. As to the results to the parties from retaining or dissolving the injunction, the allegations of the bill and amendment, and the answer thereto, show that both parties were engaged in the same general business, incurring like burdens and expenses, so that the indications are that the injury resulting to the complainant. from the dissolution of the injunction would probably not be greater than those which would result to the respondent from retain

[Walter v. Alabama Great Southern R. R. Co.]

ing the same. Neither company has any special rights in the streets, except as granted by the municipal authorities, and when a telegraph, telephone or other electric company acquires rights over streets, it does not acquire a distinct part of the land, such as the right of way of a railroad company, over which another company cannot pass without instituting condemnation proceedings, but its rights are subject to the rights of every other company, to which the city may grant the right to string its wires over the streets, subject only to the right of the first to be protected from injury by the stringing of other wires so near as to injure its property or prevent its discharge of its duties to the public. It seems that, in this instance, the city has placed such conditions on the respondent company as to safeguard these points, and the court committed no error in sustaining the motion to dissolve the injunction.-B. T. Co. v. S. B. T. & T. Co., 119 Ala. 144. 150-1; A. T. & T. Co. r. M. C. T. Co., 138 Ala. 597.

The decree of the court is affirmed.

MCCLELLAN, C. J., TYSON and ANDERSON, J.J.,

ring.

concur

v.

Walter . Alabama Great Southern R. R. Co.

Action Against a Common Carrier for Failure to Safely Deliver Freight.

1. Action against common carrier; sufficiency of complaint.-In an action against a common carrier to recover damages for failure to safely deliver goods shipped over its lines, a count of the complaint which is substantially in the form prescribed by the Code for suit against a common carrier on a bill of lading, with some additional averments made necessary by the suit being brought against the defendant as a connecting carrier, sufficiently states a cause of action and is not subject to demurrer.

[Walter v. Alabama Great Southern R. R. Co.]

2. Same; contributory negligence no defense.-In an action against a common carrier, which is not the initial carrier, for failure to safely deliver goods shipped over its line, a plea which sets up contributory negligence on the part of the plaintiff in that the goods were improperly loaded in the car of the initial carrier by plaintiff, or his agent, presents no defense and is subject to demurrer.

3.

Same; same; same; sufficiency of plea.-In an action against a common carrier for failure to safely deliver goods shipped over its line, a plea which after setting up as a defense the contributory negligence on the part of plaintiff then avers "that the goods were not injured or damaged while in the possession of this defendant" presents a defense, since if the goods were not damaged or injured while in the possession of the defendant there would be no liability on the part of the defendant.

4. Same; same. In such a suit where there were several connecting carriers and an action is brought against the delivering carrier, a plea which avers that the car in which plaintiff's goods were transported was received by defendant from a connecting carrier and was closed and sealed and so remained from the time of its delivery to defendant until it was delivered to plaintiff, and that the contents of the said car could not be seen by defendant without its breaking the seal and opening the car, and that the contents of the car was not visible or known to defendant when it was received from the connecting carrier, and that defendant hauled said carload of goods from the place where it was delivered to defendant to its place of destination in the same condition in which it was received, and delivered same to plaintiff in such condition, and that if said goods were damaged as alleged in the complaint it was not through the fault or negligence of the defendant, and is not subject to demurrer.

5. Action against common carrier; burden of proof.-In an action against a common carrier for failure to safely deliver goods shipped over its lines, where it is shown that the defendant was one of several connecting carriers, and was the discharg ing or delivering carrier, and the contract of affreightment stipulated that the liability of each line is limited to loss of injury occurring on its line, if it appear that the goods were in sound condition when received by the initial carrier, and it is further shown that upon their delivery to the plaintiff they were in a damaged condition, the burden is upon the defendant to show that the damage or injury did not occur while

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