Bellview Cemetery Co. v. McEvers

57 So. 375 | Ala. | 1912

ANDERSON, J.

This is the second appeal on demurrer in this case (168 Ala. 535, 53 South. 272), and this one presents no question not heretofore considered, other than the last amendment to the bill of complaint, which attempts to describe the road as a public one, and not as a mere permissive way as it was held to be, under the then averments of the bill, considered in the former opinion.

A majority of the court held that the bill was not-multifarious because it sought to enjoin both the establishment and use of the cemetery and the closing of the road also. Regardless of the rule as to multifariousness prior to the present Code, section 3095 of the Code of 1907 expressly declares: “A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties.” Here the bill seeks to enjoin or prevent certain actual or threatened wrongs by the same respondent against the property of the complainant. The threatened injuries, though to be inflicted in different ways, tend to accomplish the same purpose; that is, interfere with the use and enjoyment of the complainant’s home and to depreciate the value thereof. We repeat that the bill Avas not subject to the demurrer for multifariousness. A majority of the court held that the bill Avas not subject to demurrer as to the cemetery feature of same upon the theory that it made out a case of a real, as distinguished from an imaginary, nuisance; that the maintenance of the cemetery in question, under the conditions charged in the bill, would seriously impair the health and enjoyment of the complainant’s premises.

We are of opinion that the last amendment of the bill sufficiently charged that the “Bias Road” Avas a public one, and the chancery court properly overruled the demurrers raising this question.

“A public highway is one under the control and kept by the public, and must be either established in a regular proceeding for that purpose, or generally used by the public for 20 years, or dedicated by the owner of the soil and accepted by the proper authorities.” — Lewman v. Andrews, 129 Ala. 174, 29 South. 692; McDade v. State, 95 Ala. 28, 11 South. 375; Harper v. State, 109 Ala. 66, 19 South. 901. The last amendment avers that the read ivas used and controlled adversely by the public for more than 50 years.

The decree of the chancery court is affirmed.

Affirmed.

All.the Justices concur except Dowdell, C. J., not sitting.