Cabbell v. Williams

127 Ala. 320 | Ala. | 1899

TYSON, J.

Complainant’s bill sought to have the defendant to remove two wire fences erected by him across a certain road for the purpose of preventing and obstructing the complainant and the traveling public from traveling along and over said road. It is averred in the bill that this road was originally dedicated by one Paul Cameron, the owner of the land which it traverses, or those under or through whom he held and acquired the property, as a public highway and was accepted by the public more than twenty years prior to 1874 and more than forty years prior to the erection by the defendant of the wire fences across it. The bill further shows that the complainant acquired a title to a portion of the tract of land across which this road runs, through mesne conveyances from Cameron, and that the defendant also acquired another part of- said tract directly from Cameron. It is also shown by the averments of the bill that a portion of the lands of the complainant and the defendant abut upon this road and are -separated by it. The points at which, however, the obstructions are located are upon the defendant’s lands'. The bill expressly avers that these obstructions absolutely prevent the egress by the complainant from her dAvelling to the public road, known as the Greensboro and Cedar-ville road, unless she goes through private lands belonging to others. The Greensboro and Cedarville road, it appears, is the only public highway accessible to the complainant leading to Greensboro, Ala., which is her market town.

It is unnecessary to ‘ -set out the evidential facts averred in the bill to- show a dedication and acceptance by the public, further than to -say that a continuous use by the public of this road as a highway, for over thirty years before the obstructions were erected by the defendant, sufficiently appears.

Fifteen grounds of demurrer were assigned to the bill, which were overruled, and this appeal is prosecuted from that decree.

•Only the second, fifth, ninth, tenth, fourteenth and fifteenth grounds are argued in the brief -of appellant’s counsel, and we will confine our -consideration -of the case to the questions raised by each of them.

The second goes to the right of the complainant to .maintain the bill for failure to show any -special -damage sustained by her different from that suffered by the general public. In Elliot on Loads & Streets, 474, the rule on this subject is stated to be this .\ “It is a general rule, however, that no one can maintain an action for a defect or an obstruction in a highway unless he -has suffered- some special or peculiar injury. Tlie mere fact that he is, in common with all others who have occasion to use the way, delayed by an obstruction, will not ordinarily entitle him to damages, but diversion of custom from a «hop or colliery by an obstruction in the -highway will warrant a private action, and where one had-started upon his journey, but was compelled to go back by reason or an 'obstruction, whereby he suffered-loss, it was held that he had shown ‘a peculiar damage’ for which -lie was entitled to maintain an action. So, an abutter has a -special interest in a highway giving him the right of access to his premises, and may maintain an action for an obstruction wln-cli cuts off his right of access.”

It is contended by the appellant that under the averments of the bill the complainant suffers the identical annoyance and inconvenience endured by the public. In this we cannot concur.. No other member- of the traveling public is completely and exclusively cut -off from the Ui eensboro- and (Jedarville road. The rights are only excluded ‘from traveling the obstructed road, between the p-omt where it intersects another road leading into the dreensboro road and the point where it enters the Candy’s Landing road, a public- highway leading to Candy’s Landings a public landing on the Warrior river. For aught that appears all the traveling public have access to both of these public roads without let or hindrance by other routes, except this complainant. This is a damage peculiar to the complainant, not suffered in common with the general public, different not only in degree but also in kind.- — 9 Am. & Eng. Encyc. of Law, 41a ; Severy v. C. P. R. R. Co., 51 Cal. 194; G. R. & I. R. R. Co. v. Heisel, 38 Mich. 62; Stone v. F. P. & N. W. R. R. Co., 68 Ill. 394; C. & W. I. R. R. Co. v. Ayres, 106 Ill. 511; Crommelin v. Coxe & Co., 30 Ala. 318.

On the fifth and ninth grounds it is sufficient to say, that the bill expressly avers a dedication and an acceptance by the public. This'averment ex vi termini includes the assent of- the -owner to the use of the road by the public — 9 Am. & Eng. Encyc. -Law, 21. And if there was an acceptance by the public of the dedication, there is no necessity of averring or proving that the road was used by tlie public adversely as a public highway, for twenty years. The dedication when completed by the acceptance became irrevocable. — Elliot on Roads & Streets, 119; Stewart v. Conley, 122 Ala. 179.

Both the dedication and acceptance took place according to the averments of the bill more than twenty-years prior to the acquisition by the. defendant of any interest in the lands. So the road was a public road at the date of his purchase. His acquiescence in its use by the public is of no consequence. The rights of the public having attached, no dissent of his could affect them. ■ This disposes of the fifteenth ground of the demurrer.

The tenth ground is predicated upon the objection that the complainant has an adequate remedy at law. In support of this contention it is said that the criminal law of this state provides a complete, perfect and adequate remedy whereby the offender is punished and the nuisance abated. It is true the criminal statute (§ 5388 of Code) makes it a misdemeanor to obstruct a public road by fence, bar or other impediment, except by gates erected across the same by' leave of the court of county commissioners, obtained as provided by law. It is also true that in Campbell v. The State, 16 Ala. 144, it was held that a judgment upon an indictment for a nuisance, “that the nuisance be abated forthwith by the defendant, if it has not already' been done,” would be sustained by this court. But it was not held, nor could this court have held had it been urged so to do, that a judgment could have been rendered restraining the defendant from, repeating the injury to the party damaged.

It has been too long settled by the decisions of this court to be now questioned that chancery will assume jurisdiction to abate just such a nuisance as is sought to be abated by' this bill, by' preventing its continuance by the aid of an injunction. “This will be done, either oil the ground of the irreparable nature of the injury or to prevent a multiplicity of suits liable to be occasioned by its repetition or continuance or other grounds which render the remedy at law inadequate. The disturbance of easements, existing or threatening, will especially be restrained, ivitli much favor.” — City of Demopolis v. Webb, 87 Ala. 659; Rosser v. Randolph, 7 Porter, 238; State v. Mayor and Aldermen of Mobile, 5 Port. 279.

The objection raised by the fourteenth ground of demurrer is that the.bill does not aver that the road dedicated and accepted has ever been worked or kept up by the public. It is never necessary or proper to aver evidential facts in pleading. But aside from this, had the complainant relied exclusively upon an implied acceptance- by the public of the dedication, the fact that the road had been worked or kept up by the public is not the only one upon which such an implied acceptance by the public may he made to rest. There are many other acts on the part of the public indicative of an acceptance and from which an acceptance may be inf erred, or implied. But certainly such an averment has no place in a bill expressly averring a dedication and acceptance. An acceptance being averred, it then becomes a matter of proof.

There is no error in the record, and the decree is affirmed.