This proceeding was filed in the circuit court of Tuscaloosa County, in equity, by Alabama Power Company, a corporation, against R. M. Ray and Myrtle Boyd Ray.
Complainant prays for a decree requiring the respondents to remove a building which the bill alleges was constructed by the respondents at a place on complainant’s right of way so as to constitute a fire hazard to complainant’s transmission lines.
From a decree sustaining the respondents’ demurrer, the comрlainant has appealed to this court. The trial court sustained the demurrer without designating the ground or grounds thereof which were considered well taken. A demurrer is a single entity and if one ground is good a decree sustaining the demurrer is correсt. Ellis v. Stickney,
It is settled that the equity courts of this state have jurisdiction to enjoin the obstruction of a private easement ánd to require the removal of such obstruction. West v. West,
Any person creating or maintaining an obstruction may be sued whether hе has any interest in the premises on which the easement is located or not. Hardin v. Sin Claire,
To sustain a bill to enjoin the obstruction of an easement except as incidental to other equitable relief, it must appear that the remеdy at law is either doubtful, difficult or not sufficient to grant adequate relief. An action for damages is insufficient when the obstruction is permanent or continuous or destroys- the right itself! The allegations of the bill here under consideration are sufficient as against the claim that there is an adequate remedy at law. Sellers v. Valenzuela,
Such a bill must sufficiently show the existence of the easement to justify the relief. Sellers v. Valenzuela, supra.
The bill must describe the easement so as to show thе nature, extent, and location of the right claimed in order that a definite decree may be entered. Cleveland, C., C. & St. L. Ry. Co. v. Griswold,
The complainant, Alabama Power Company, claims an easement by virtue of an instrument which was recorded in the office of the judge of probate of Tuscaloosa County on September 23, 1940, which in
“We, S. G. Hamilton and Wife, Claire G. Hamilton, for and in consideration of the sum of One Hundred Seventy Five & no/100 Dollars ($175.00) to us in hand paid by Alabama Power Company, a corporation, the receipt whereof, is acknowledged, do hereby grant to said Alabama Power Company, its sucсessors and assigns, the right to construct, operate and maintain its lines of poles and towers and appliances necessary in connection therewith, as located by the final location survey heretofore made by said Comрany, for the transmission of electric power with the right to string thereon from time to time electric power and telephone wires and the right to permit other corporations and persons to attach wires to said poles and tоwers upon, over and across the following described lands situated in Tuscaloosa County, Alabama:
“The East 37% feet of Lots Nos. 2 and 4, of the Crestview Subdivision according to the Plat and Plan thereof, as recorded in Map Book 4, on Page 132, in the Probate Office of Tuscaloosa County, Alabama, situated in W. % of W. % of E. '% of N.W. %, Section 20, Township 21, Range 9, which lies North of Birmingham Highway.
“Together with all the rights and privileges necessary or convenient for the full enjoyment or use thereof, including the right of ingress and egress to and from said lines; and also the right to cut and keep clear all trees, and to keep clear other obstructions, that may injure or endanger said lines.
“To Have and Hold the same to the said Company; its successors аnd assigns- forever.
“In Witness Whereof, we have hereunto set our hands and seals, this the 19th day of- July, 1940.”
' We think ¡felfear that the description used in the instrument just quoted above was not intended to define the limits of the right of way, but to designate the place where it was to be reasonably enjoyed. The terms of the grant, considered in reference to the locality and situation of the premises, do not operate to pass a right to the unobstructed use of the entire 37% feet described, but to the сonvenient use of so much as may be necessary to the purposes intended by the grant. Long v. Gill,
The instrument of July 19, 1940, is not void for want of sufficient description of the easement. Alabama Central R. Co. v. Long,
When a conveyance of a right of way does not describe or define it by metes and bounds, the grantee is entitled to a convenient, reasonable and accessible way, dependent upon the condition of the place and the purpose for which it was intended and thе nature of the acts of those having the right of user, and reasonable as respects the rights of the grantor, as well as the grantee. Birmingham Realty Co. v. Birmingham Belt R. Co.,
The only specific reference in the bill of complaint as to the right of wаy claimed by the complainant is found in § 3 of the bill, which reads as follows:
“Complainant further alleges that as a part of its right of way in Tuscaloosa County, Alabama, it acquired by conveyance from S. G. Hamilton arid wife, Claire G. Hamilton, a right of way аs set forth and contained' in a*510 conveyance executed and delivered by them to .Complainant,- such conveyance . being dated July 19, ¡1940,. and .being. - marked Exhibit ‘A’ and made'-a part ; of this bill of- complaint; .that the.,;, right of way. .conveyed, t-he.r.ehy. iis der.. scribed as follows':-■ ,- ., ,
“A part o’f the East 37% feet' of Lots Nos. 2 and 4, of the Crestview ■ Subdivision, according to the Plat arid Plan thereof, as recorded in Map' Book 4, on page’ 132, in the Probate Office of Tuscaloosa County, Alabama, situated in thе W % of the W % of the E % of the NW %,'Section’20,' Township 21 South, Rarige' 9 West, which lies North' of the Birmingham Highway, and is more particularly described as follows: Commence at the Northwest corner of said Section 20 and run thence East- -for a distance of 1315.9 feet to the Northeast corner of the NW % of the NW % of. said. Section 20;. turn thence.,to the right . at an angle of. 87°5' and run .thence-. South for a distance of 1512.2 feet to a point.; turn-thence .to. the left,-at an angle of 90°47' and run thence North 83°55' East for a distancе of- 304.8 • feet; turn, thence to -the .right, at an angle ¡of -90°39 and run thence South ■ 5°26' -East for a distance of 372 feet to - a ■ point- which is the point of beginning ; turn thence to the left - at an , angle of 6°54' and run thence South 12°20' East for a distance of 1.12.2 feet í .toapoint.”
The averments of the. bill quoted above do not sufficiently describe the extent of the right .claimed. It is.said therein that the complainant has a right of way as. set forth and contained in the instrument of July 19, 1940, but as shown above, while that instrument does sufficiently dеscribe the servient tenement, it does -riot adequately identify and describe 'the Way. The remaining parts of § 3 of. the bill, rather than add to the description contained in the conveyance, conflict therewith. In describing the exact position of the right of way, it is apparently placed not in the W % of the W % of the E % of the NW % of Section ,20, but in the E % of the W.% of the E % of the NW % of that.section. It-,does appear from the..averments quoted aboveth,at .the complainant-does not;in its bill claim the right to the unobstructed.pse of the entire 37%-foot wide tract.
We • lay. aside any ^consideration of‘the effect’of the specific description apparently placing the 'right of way on -lands-not covered by -the conveyance of July 19, 1940.
It is clear, that the specific description attempted does nothing more than show a comparatively straight line approximately 112 feet long. The bill is entirely silent, as to the. width of the right .of way claimed by complainаnt. There is no averment as to how much of the 37%-foot strip the complainant needs to,give it a convenient, reasonable and accessible ,way.
It is true that the' bill alleges that the respondents have ' cori'structed a toufist cabin immеdiately ' beneath complainant’s transmission' line. '• Aásuming ' that the bill sufficiently shows-that tHfe transmission-line was' constructed in compliance with the grant, then it would follow thiat the tourist cabin has been' constructed on' 'complainant’s right, of way.,-
But complainаnt brays for a decree requiring the respondénts “to remove said tourist cabin' from said right of way.” How far must the tourist cabin be moved from its. present location berieath the transmission lines of cornplaihant in order, to get it off'complainant’s right .оf way? " It is possible' that complainin'! might be entitled to the use of all of the East 37% feet of Lots 2 and 4'of the Crestview Subdivision or of- a large part thereof in order to give- it a convenient-, 'reasonable ind accessible way. But, as heretofore indicated, there is no averment as to' how milch of said 37%-foot strip- the’ complainant claims is reasonably- necessary ’for the’ purpose intended by 'the grant.
We are of the'opinion that the respondents are entitled tó be infоrmed by the pleadings as to how much of the said 37%-foot strip the complainant is claiming. If the respondents are to be required to move the tourist cabin from its present location.
We are of the opinion that those grounds of demurrer which take the point thаt the right of way claimed by complainant is inadequately described were well taken and that the trial court did not err in sustaining the demurrer.
Although the foregoing conclusion results in an affirmance of this cause, we feel that we should express our viеw in regard to the claim of appellees that the complaint was subject to those grounds of demurrer which take the point that the bill and the exhibit thereto affirmatively show that complainant is not entitled to a decree requiring the respondents to remove the said tourist cabin, even though it be located on complainant’s right of way.
It is asserted on behalf of appellees, respondents below, that the conveyance under which the complainant claims expressly gives to complainant the right to keep clear obstructions on its right of way that may injure or endanger its transmission lines, and that therefore it is incumbent upon complainant to remove the tourist cabin.
In the case of Collins v. Alabama Power Co.,
In our opinion, the provisions of the grаnt which in effect give the grantee therein, complainant here, the right to cut and keep clear all trees and other obstructions that may injure or endanger its lines should not be held to deprive complainant of the rights which naturally flow tо it as the owner of-the easement.
For the reasons heretofore indicated, the decree of the trial court is affirmed.
The complainant is given thirty days from the date on which the certificate of the clerk of this court reaches the register of the circuit court of Tuscaloosa County, in equity, within which to amend or plead further if it so desires.
Affirmed.