Opinion
Decided June 12, 1913. Rehearing Denied June 30, 1913.
Appeal from Chancery Court, Montgomery County; L.D. Gardner, Chancellor.
J.M. Foster, of Montgomery, for appellant.
E.T. Graham and C.H. Roquemore, both of Montgomery, for appellee.
The questions involved in this case require us to construe section 6030 of the Code of 1907, which is as follows:
"The acknowledgment and recording of such plat or map shall be held in law and in equity to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public, and the premises intended for any street, alleyway, common, or other public use, as shown in such plat or map, shall be held in trust for the uses and purposes intended or set forth in such plat or map."
It is necessary, in order that the provisions of the above section 6030 may be fully understood, that the provisions of that section be read in connection with the following other sections of the Code:
"6028 (3899). Town lots; survey and plat. — Any person desiring to subdivide his lands into lots shall cause the same to be surveyed by a competent surveyor, if not already surveyed, and shall cause a plat or map thereof to be made, showing the subdivisions into which it is proposed to divide the same, giving the length and bearings of the boundaries of each lot and its number; and if it be the purpose of the owner to divide the lands into town lots, such plat or map shall show the streets, alleys, and public grounds, and give the bearings, length, width, and name of each street, as well as the number of each lot and block. Such plat or map must show the relation of the lands so platted or mapped to the government survey."
"6029 (3900). Plat to be certified, signed by owner, acknowledged, and recorded; evidence. — The plat or map having been completed, shall be certified by the surveyor, which certificate must also be signed by the owner, his duly authorized agent or attorney, and acknowledged by such owner, agent, or attorney, in the same manner in which deeds are required to be acknowledged. The plat or map, together with the certificate of the surveyor and of acknowledgment, shall be recorded in the office of the judge of probate in the county in which the lands are situated, in a suitable book to be kept for that purpose; and such acknowledgment and record shall have like effect, and certified copies thereof and of such plat or map may be used in evidence to the same extent and with like effect as in the case of deeds."
The common law is the base upon which all of the laws of this state have been constructed, and when our courts are called upon to construe a statute — when they are called upon to ascertain and declare the legal effect and meaning of a legislative enactment — they must read the statute in the light of the common law.
At common law the ultimate fee to the middle of the street was in the abutting landowner. There was reasoning underlying the above rule of the common law, for the ultimate fee in lands should reside somewhere, and, where it resides in the abutting landowner to the middle of a street, it furnishes to that landowner an efficient weapon for his protection against an unwarranted appropriation of a street in the proper maintenance of which the situation of his property gives him a peculiar interest. Through this doctrine of the common law this court has been able to meet and determine, with justice to the owners of lands abutting upon streets and to the public to whose use such streets are devoted, each question which the constant growth of municipalities and the rapid and continuing advancement of human activity has developed. In fact, through this principle, this court has, meeting the wants of the state as it has proceeded in its various stages of development, declared a system possessing sufficient elasticity, and at the same time sufficient certainty to meet any demand which each improved system of communication and transportation and each modern condition and need of human life has made upon it. Perry v. N.O., Mobile Chattanooga R.R. Co., 55 Ala. 413, 28 Am.Rep. 740; Western Railway of Alabama v. Ala. G.T.R.R. Co., 96 Ala. 272, 11 So. 483, 17 L.R.A. 474; Highland Ave. Belt Ry. Co. v. Matthews, 99 Ala. 24, 10 So. 267, 14 L.R.A. 462; Birmingham Ry., L. P. Co. v. Smyer, 61 So. 354. The common-law rights of a citizen occupy a high plane of sanctity for they are inherited rights.
For this reason it is a general rule of construction of statutes that "there are certain objects which the Legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided. It is found sometimes necessary to depart, not only from the primary and literal meaning of words, but also from the rules of grammatical construction, when it is improbable that they express the real intention of the Legislature; it being more reasonable to hold that the Legislature expressed its intention in a slovenly manner than that it intended something which it is presumed not to intend.
"One of these presumptions is that the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they were not really used. It is therefore an established rule of construction that general words and phrases, however wide and comprehensive in their literal sense, must be construed as strictly limited to the immediate objects of the act and as not altering the general principles of the law; i.e., they are to be construed as near the use and reason of the prior law as may be without violation of their obvious meaning." Endlich, Interp. Stat. p. 151, § 113.
In the case of Cecilia Thomas v. R.H. Hunt, 134 Mo. 392, 35 S.W. 581, 32 L.R.A. 857, which is cited by counsel for appellant in his brief, the Supreme Court of Missouri, construing a statute somewhat similar to the above-quoted section 6030 of our present Code, said: "The statute in force when the plat was filed provided that such plats 'shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public use in the county in which such town, village, or addition is situate, in trust, and for the uses therein named, express or intended, and for no other use or purpose.' Rev.Stat. 1855, § 8, p. 1536. Under this statute it has been held that the fee passes from the owner by the dedication. Hannibal v. Draper, 15 Mo. 634; Reid v. Edina Bd. of Edu., 73 Mo. 304. * * * Considering the policy of the law, as before stated, to be that the owners of property abutting on a street own the fee also to the center of the street, subject to the easement, it is clear to us that the statute was intended to effect the same purpose; that is, while the fee passed out of the dedicator and vested in the county, the public only secured an easement, and the abutting owners, respectively, the beneficial right in the land to the center of the street. This seems to be the view taken in the Snoddy Case, 122 Mo. 491, 25 S.W. 932, 24 L.R.A. 507, and 122 Mo. 493, 24 S.W. 142, 24 L.R.A. 512, though what is there said may be considered only dicta. We are therefore of the opinion that by the statutory dedication of Tracy street the fee to the land passed out of the dedicators, and the ownership, subject to the easement, vested in the abutting owners, respectively, to the center of the street." To the same effect is a later decision of the Supreme Court of Missouri, rendered by that court in Union Elevator Co. et al. v. Kansas City Suburban Ry. Co., 135 Mo. 353, 36 S.W. 1071. In that case the court said: "Counsel for defendant insist that the cases cited are predicated on the fact that the owners of the lots in question in those cases owned to the center of the alley or street, while in this case the fee of the streets was dedicated to the county of Jackson in trust for the public. Coates Hopkins' addition to the city was platted, and the plat filed in the recorder's office of said county, on the 7th day of January, 1876. By it Henning and Hopkins streets were dedicated to the public, and the fee therein vested in the city for public purposes. Gen.St.Mo.1865, c. 44, § 8. By that statute it is not meant that an absolute fee in the streets is vested in the city, with the right of disposal by deed, but simply the right of their control for the use of the public. Whatever may be the ruling in other jurisdictions under similar conditions, the law as announced in this state is that the owner of land adjoining a street or alley owns the fee to the center of such street or alley, as the case may be, subject to an easement in the public." To practically the same effect are the cases of Schurmeier v. St. Paul Pac. R.R. Co., 10 Minn. 82 (Gil. 59), 88 Am.Dec. 59, and Betcher v. Chicago, M. St. P. Ry. Co., 110 Minn. 228, 124 N.W. 1096.
Taking into consideration the law as it had, through the entire history of this state, been declared by an unbroken line of decisions of this court to exist, we are clearly of the opinion that, when an owner of land divides his land into town lots and by his map, certified, signed, and acknowledged and recorded as required by section 6029 of the Code of 1907, dedicates certain parts of the said land to the public to be used for streets and alleys, an easement in the lands so dedicated for such purposes vests in the public, but the ultimate fee in the land, subject to such easement, remains in the abutting landowners to the center of such streets and alleys, and that section 6030 of the Code of 1907 was intended by the Legislature to so declare. Sections 6031 and 6032 of the Code of 1907, which provide methods whereby the provisions of sections 6028, 6029, and 6030 may be abrogated, clearly show that the construction which we have put upon said section 6030 was the construction which the Legislature placed upon that section when it called it into existence.
1. While, under the laws of this state, the public have only an easement in a street of a city, that easement is paramount and the right of the public to passage over a street extends over "every part of it, from side to side, and from end to end." The public acquires the right to use the street not only by means of vehicles in use at the time of the dedication of the street but also by such other reasonable methods of conveyance which in the future may be discovered, provided "such vehicles or modes do not exclude the proper use (of the street) by other modes or kinds of vehicles. Any use of the street for public travel, which is within the limits of the public easement, whether it be by old or new methods, provided it does not tend to destroy the street as a means of passage and travel common to all, is lawful and permissible." Birmingham R.L. P. Co. v. Smyer, supra.
The mere fact that an abutting landowner owns the ultimate fee to the middle of the street does not confer upon him the right to put that part of the street in which he owns such ultimate fee to even a temporary use which is inconsistent with all of the rights of the public in such street unless there is some necessity therefor. "The fee is entirely and completely subordinate to the dominant easement," and an invasion of the rights of the public in the street "can be justified only on the ground of necessity." Commonwealth v. Passmore, 1 Serg. R. (Pa.) 217; Van O'Linda v. Lothrop, 21 Pick. (Mass.) 292, 32 Am.Dec. 261; Raymond v. Keseberg, 84 Wis. 302, 54 N.W. 612, 19 L.R.A. 643.
As the abutter owns the fee to the middle of the street, he may, however, out of respect to the fact of his ownership, use that part of the street for any lawful purpose of his own when such use in no way interferes with any of the dominant rights of the public. The word "street" means "the surface; it means the whole surface and so much of the depth as is or can be used not unfairly for the ordinary purposes of a street. It comprises a depth which enables the original authority to do that which is done in every street, namely, to raise the street and to lay down sewers, for at the present day there can be no street in a town without sewers, and also for the purpose of laying down gas and water pipes. 'Street,' therefore, in my opinion includes the surface and so much of the depth as may not unfairly be used as streets are used." Butt, L.J., in Coverdale v. Charlton, L.R. 4 Q.B. Div. 104; Dillon on Munic. Corp. (5th Ed.) p. 1692, § 1072, note.
"They (that is, the abutting owners) may have every use and remedy that is consistent with the servitude or easement of a way over it and with the police regulations." 3 Kent's Com. 433; 3 Dillon on Munic. Corp. (5th Ed.) p. 1772, § 1123, and notes.
Of course the uses to which an abutter may lawfully put a street varies with the size of the municipality in which the street is situated. An abutter upon a street in a small village may lawfully use the street for purposes which would be unlawful in a city. The dominant right in a street is the right of the public, but the extent of that right depends upon the needs of the public. The surface of the street, in all places, great and small, must be kept open for the lawful use of the public, unless, indeed, there is some temporary paramount need of the abutting owner for a part of it. Costello v. State, 108 Ala. 45, 18 So. 820, 35 L.R.A. 303.
Of course if a village grows into a town and the town grows into a city, each step in the growth of such municipality increases the public demands and thus, in fact, broadens the right of the public in both the surface and the subsurface use of the streets, and the authority of the abutter to use either the surface or the subsurface portions of such streets diminishes as the rights of the public increase. The private use of the abutter to the subsurface (as to the surface) of a street can only be justified out of respect to his private reasonable need therefor, subject, of course, to reasonable police regulations, and any private use to which he may put his street, as an abutter, must be held to be subservient to, and in recognition of, the dominant rights of the public in such street for all street purposes and must give way to that dominant right whenever the public needs require that it shall do so. Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62.
2. The facts of this case are as follows: The N.E. 1/4 of section 19, township 16, range 18, Montgomery county, Ala., bounds the city of Montgomery on the southeast. The lands embraced in the above description are gently rolling and peculiarly adapted to residence purposes. On the 20th day of April, 1894, McClellan, Sherrer, and Brown, who then owned the lands and who desired to exploit and sell them for residence purposes, had the said lands surveyed and platted into lots and streets. The map of the lands, showing the various subdivisions and streets, was signed, certified, acknowledged, and recorded as provided in said section 6029 of the Code. Between April 20, 1894, and June 10, 1901, the said McClellan, Sherrer, and Brown sold to sundry people a large number of said lots. On June 10, 1901, McClellan, Sherrer, and Brown and all of their vendees, under the provisions of section 6031 of the Code of 1907, annulled the above-mentioned map. The property was then resurveyed, new streets and alleys were dedicated to the use of the public instead of the old ones, a new map of the property was made, all in accordance with the provisions of article 2 of chapter 142 of the Code of 1907 (sections 6028 to 6034, inclusive, of said Code), and the map was duly filed for record and recorded in the probate office of Montgomery county. From the 10th day of June, 1901, to the 20th day of April, 1908, the Cloverdale Company, a private corporation which had become the owner of much of the above-described land, sold many of the lots to sundry individuals. On April 20, 1908, the appellant, the Cloverdale Homes, was incorporated. This corporation is a private corporation and is authorized by its charter to purchase, own, sell, and otherwise deal in real estate. On or about the above-mentioned date the Cloverdale Homes, appellant here, bought from the above-mentioned Cloverdale Company 128 of said lots. The Cloverdale Homes was really organized for the purpose of buying the above lots, to improve the property and sell the lots to such persons as might desire suburban homes contiguous to the city of Montgomery. It paid $50,000 for the lots; and, in order that the situation may be made fully to appear, we copy the following from the bill of complaint, which, as we understand this case, states the truth: "Said property was then mostly unimproved; the streets having only been laid out, but not opened and put in condition for use by the public. This property lay along the streets now known as Cloverdale road, Felder street, Galena avenue, Thorn place, Earl avenue, and Prairie avenue. In order to make said lots salable, it was necessary for the complainant to open up, grade, and gravel the streets running through said property and to put water and gas mains upon said streets, so that water and gas should be accessible to the residents and owners of said lots. Complainant expended in the opening and improvement of said streets $9,048.79; in the laying of water pipes, including fire plugs, $6,495.29; and in the laying of gas mains, $4,554.83. In order to reach the gas mains of the Montgomery Light Water Power Company, which was the only concern furnishing gas to the inhabitants of the city of Montgomery and vicinity, it was necessary to lay mains from Norman Bridge road up to the limits of complainant's property, and this part of said main ran through no property belonging to complainant and covered a great distance. Including the part of the main just referred to and the mains laid on the streets above mentioned, complainant laid 7,961 feet of gas main, at a cost, as aforesaid, of $4,554.83. In order to get permission to connect with the gas mains of the Montgomery Light Water Power Company, complainant had to enter into a contract with said company, a true copy of which is hereto attached, marked Exhibit A, and prayed to be taken as a part of this bill of complaint."
The Cloverdale Homes has, under its charter, no authority to do a public service business, but it has the authority to provide facilities for obtaining gas, lights and water for its tenants and vendees. This provision in its charter did not confer upon it the power of eminent domain nor did it confer upon it the right to use the public highways of the county of Montgomery for the purpose of laying water and gas mains in them for the purpose of conducting water and gas to its properties or the properties of its vendees. It was by virtue of the above authority to provide facilities for obtaining gas, lights, and water for the above-stated purposes that it made the contract of which Exhibit A to the bill is a copy and which the reporter will set out in his report of the facts of this case.
At the time the Cloverdale Homes laid the water and gas pipes referred to in the above-quoted portion of the bill of complaint, Cloverdale was an unincorporated village. Before the pipes were laid, the board of revenue of Montgomery county consented thereto, and, so far as this record discloses, the pipes were laid just as they now are without the objection of any person whatsoever. The Cloverdale Homes has nothing to do with furnishing gas to its tenants or vendees. That is a matter of contract between the tenant or vendee and the Montgomery Light Water Power Company, which is a public service corporation and which possesses the power of eminent domain. The pipes were laid by the Cloverdale Homes for the purpose of improving its own property and making it more valuable and salable, and, in selling its lots, the Cloverdale Homes has guaranteed to its vendees that they and those acquiring title through them shall have the right to tap the gas pipe free of charge. In order that other property owners, not the vendees of the Cloverdale Homes nor tracing title through said Cloverdale Homes, may enjoy the right of also tapping said gas pipe, the Cloverdale Homes offers all lot owners whose lots abut the streets in which the gas pipe is laid the privilege of paying a certain fixed price for that privilege. This fixed price, so the Cloverdale Homes contends, represents the actual cost per foot of laying the pipe along the street, but the respondent, the town of Cloverdale, contends that this fixed price is fixed arbitrarily and is greatly in excess of such cost.
The Cloverdale Homes, since it acquired the above-mentioned properties, has sold off all of its lots except 46 of them, and most of the purchasers of such lots have connected their lots with the above-mentioned gas pipe by laying service pipes from their residences under the ground to such gas pipe or main.
We direct attention to the fact that all of the above improvements were made, and all of the above things were done, without objection on the part of any one, and with the consent of the board of revenue of Montgomery county, while Cloverdale was an unincorporated village or community. The gas pipe or main is laid beneath the surface of the streets or driveways in which it is situated; its presence in such streets or driveways in no way interferes with the full and free use by the public of such streets or driveways; and the fact that it is in the streets or driveways at all would be unknown by one who had not seen it while it was being laid unless he was told of its presence. It is a convenient and cheap method used by those who are connected with it of conveying fuel to their homes and is, of course, a thing of value to those who have the legal right to use it. The village of Cloverdale, as it now exists, is simply a place for residences. It was not designed or intended to be other than a place of homes, and there is no remote probability that in the future it will be other than a place where people will make their homes. Its inhabitants have taken up their habitations there in order that they may be, while in their homes, free from the dust, noise, and turmoil of city life. The adjoining city of Montgomery is the place where the people of Cloverdale now transact and will in the future transact their business affairs.
There is not now, and never has been, any objection on the part of the village of Cloverdale to the use by its inhabitants or any of them of the water pipe or main which was laid by the Cloverdale Homes along the streets. Water, through this water main, is supplied by the city of Montgomery to the inhabitants of Cloverdale who have possessed themselves of the right to use the water main, just as gas is furnished by the Montgomery Light Water Power Company to those inhabitants of Cloverdale who have possessed themselves of the right to use the gas main. While water is in all climates necessary to all human life, savage and civilized, in our climate fuel is an essential to all civilized life. In our climate every civilized home must possess the fuel necessary to provide that home with heat sufficient to meet the requirements of the kitchen and the demands of its occupants for the comforts which only heat can supply. The method provided by the Cloverdale Homes for supplying its properties, and the properties of its vendees and all others who may pay for that right, with heat is not only economical but is a method which probably puts the streets of Cloverdale as a matter of fact to less servitude and the inhabitants of Cloverdale to less inconvenience than any other known method. Heavy loads of coal and wood, when hauled about upon the highways, are more likely to produce injury to such highways than a flow of gas through a gas main firmly and properly imbedded in the street and at a proper distance under the surface of such street.
3. On July 2, 1910, Cloverdale was incorporated as a municipal corporation, under the general laws of the state, under the name of the "town of Cloverdale." Since that time it has enjoyed all the privileges and rights of a municipal corporation and it has a mayor and a board of aldermen. After the "town of Cloverdale" became a municipality, the said Cloverdale Homes sold one of its said lots to one Patterson, with its usual covenant or guaranty that he and his grantees should have and possess the right, by virtue of the possession and ownership of the lot, to tap the above-mentioned gas main for the purpose of obtaining gas to be used in the residence to be erected on said lot. Patterson built for a young married daughter, Mrs. Ben Noble, a residence on the lot, and she and her husband, Ben Noble, have taken up their residence upon the said lot. The gas main of the Cloverdale Homes is situated a few feet from this residence in the middle of a street or driveway which passes the residence on the western side of it. Ben Noble desires to tap said gas pipe. The town of Cloverdale refuses to allow him to do so, although Ben Noble is willing and in every way has offered to comply with the terms of an ordinance of said town which is set out in full in the answer of the town, and which ordinance appears on pages 30 and 31 of the transcript, and which ordinance the reporter will set out. The reasons why the town of Cloverdale has refused to allow Ben Noble, who stands in the shoes of, and acts for, Patterson, to tap the gas main are stated by the town in its answer as follows: "That said complainant laid said gas mains in the streets of said town before it was incorporated without having acquired a franchise for the purpose, and now since said town was incorporated did refuse to apply to, or accept from, said town a franchise to maintain and operate its gas mains in the streets of said town, all of which are well known to the complainant before the bill was filed. Said gas pipes as alleged were laid before the town was incorporated, and, after the incorporation of said town and up to the time of complainant's filing this bill, the town of Cloverdale has been endeavoring to make some satisfactory arrangement with complainant and with the Montgomery Light Water Power Company by which both or one of them shall obtain a franchise from said town to engage in the gas business so that some arrangements could be made by which all residents of Cloverdale and any and all of the persons owning lots in said town could tap said gas mains and have the benefit of gas service, but neither said complainant nor the Montgomery Light Water Power Company will make any arrangements whatever with said town for the purpose of accomplishing the desire, and for that reason this defendant, acting through its mayor, has refused to grant any permit to any person to tap any gas main in the town of Cloverdale until some person, firm, or corporation, having the authority to do a gas business, shall obtain a franchise from the town of Cloverdale to engage in such business therein."
Under its charter the complainant, as we have already stated, has no right to do a public service business. It has the right, under the express terms of its charter, "to supply water, gas, electric lights and power and sewerage to the purchasers or tenants of its lands, and for such purposes to make any contract or engage in any business or enterprise which may seem desirable."
Complainant, under the letter of the above authority contained in its charter, laid the water and gas pipes at large expense and made its contract with the Montgomery Light Water Power Company and up to the time of this controversy with Ben Noble was peaceably carrying out its contracts with the purchasers of its lots. Many of the purchasers of its lots are now in the full enjoyment of the privileges which the town of Cloverdale wishes to deny to Ben Noble because the municipality is unable to force complainant to make a contract, the terms of which it shall itself declare, whereby all of the inhabitants of Cloverdale shall have the right to connect with said gas pipe. The right of complainant "to supply water and gas to the purchasers or tenants of its lands" through the water and gas pipes which, at much expense, it had laid in the streets and highways of Cloverdale with the consent of the board of revenue of Montgomery county was a right which had vested in complainant before the municipality of the town of Cloverdale was formed, and we find nothing in any of the law books indicating that the town of Cloverdale, which appears to have made no arrangement of its own, either by contract with a public service corporation or otherwise, to supply its inhabitants with either water or gas, has the right to arbitrarily deny to complainant and its vendees the orderly exercise of these rights under such reasonable police regulations as it may see proper to prescribe. When the Cloverdale Homes laid the water and gas pipes, it did so with the consent of the board of revenue of Montgomery county and without objection on the part of any landowner whose lands abutted on any of the streets under which the pipes were laid. While the board of revenue may not have possessed the authority to grant the privilege which it thus attempted to confer, it is claimed by no one that the act of complainant in laying its pipes along the highways, pursuant to that authority, was an act in bad faith, and it cannot be claimed that the property in the water and gas pipes does not still remain in the Cloverdale Homes. Respectable courts of last resort differ on the question as to whether pipes laid as indicated in this record are an additional burden upon a rural highway. 1 Elliott on Roads Streets (3d Ed.) p. 544, § 492; Baltimore County Water Electric Company v. Dubreuil, 105 Md. 424, 66 A. 439, 9 L.R.A. (N.S.) 684; Cheney v. Barker, 198 Mass. 356, 84 N.E. 492, 16 L.R.A. (N.S.) 436. Whether they are an additional burden upon the streets or not, the complainant has, without intentional wrong, at large expense placed in the streets its pipe. The pipe is there embedded in the street, doing damage to no one and of no injury to the public use of the street in any way. It is of value to Ben Noble so long as it remains where it is, for through it he can obtain fuel for his house. Other people possessing no more right than Ben Noble, without objection on the part of the appellees, are using this pipe for the same purpose that Ben Noble desires to use it. The doctrine of "sic utere tuo ut alienum non laedas" is a doctrine of wide application, and we can see no reason why the town of Cloverdale, which now has complete jurisdiction over its streets, should be permitted to deny to Ben Noble the use of the pipe simply because all the other citizens of Cloverdale cannot use the pipe upon the same terms as Ben Noble. The law is reasonable, and it should not permit a municipality to deny to one of its citizens the enjoyment of a privilege of which he may be able to avail himself because all of its citizens are not so situated as to avail themselves of the same privilege.
Ben Noble, or his father-in-law, Patterson, owns the fee of his lot to the center of the street, and, as the excavation which he desires to make in the street is safely guarded by the ordinance of the town of Cloverdale and can amount to inconvenience to no one, we can see no reason why he should not be permitted to make it. Wright v. City of Mt. Vernon, 44 A.D. 574, 60 N.Y.S. 1017.
4. Undoubtedly the town of Cloverdale has complete jurisdiction over its streets, and it has the power, if that be necessary to secure gas for all of its residents of the same class upon equal terms, to require the appellant to remove its gas pipes from its streets or, upon the payment to appellant of a sum which will justly compensate it for the value of its pipes, to condemn the pipes to the use of the town. It cannot be said that the pipe can be maintained by appellant in the streets of Cloverdale as a matter of right, and we think that, taking into consideration the character of the pipe and its evident sufficiency to meet the demands of the owners of land who abut upon the streets in which it is laid, a court of equity, upon a bill filed for that purpose, can compel the Cloverdale Homes to accept what the court may determine to be just compensation to it for the use of its pipe for the stated purpose, or to remove the pipe from the streets.
The Montgomery Light Water Power Company is a public service corporation and it cannot, of course, furnish to one of the residents of Cloverdale gas for his residence and not furnish gas to all other residents of the town occupying the same class for their residences. All persons of the same class are entitled to gas upon the same terms. City of Montgomery v. R.H. Greene, 60 So. 900. It is, of course, within the power of the town of Cloverdale, by such reasonable ordinances as it may see proper to adopt, to require a franchise tax of the Montgomery Light Water Power Company for the privilege of supplying the inhabitants of the town of Cloverdale with gas, but, so long as said town permits the said company to supply any of the inhabitants of Cloverdale with gas through said gas main, it has not the authority to deny to Ben Noble the right to use said gas pipe for said purpose.
It is our opinion, therefore, that the appellant is entitled to the relief prayed for in its bill of complaint, and that the town of Cloverdale, upon the tender by Ben Noble of the sum of $10 as required by the ordinance which we have ordered the reporter to set out in his report of the facts of this case, be enjoined from preventing the said Ben Noble from making an excavation in the street necessary to enable him to attach a service pipe to the said gas pipe at a point opposite his residence in said street.
The decree of the chancellor is therefore reversed, and a decree is here rendered granting the complainant the relief prayed for in its bill of complaint.
Reversed and rendered.