Ezernack v. EzernackEzernack v. Ezernack
- Reporters:
- , ,
- Before:
- Culpepper
Plaintiff proceeded by rule for an injunction restraining defendant from interfering
Defendant filed an exception of no cause or right of action, which was tried and referred to the merits by the court. Defendant; reserving his rights under the exception, filed answer of general denial, and the сase was thereupon tried on the merits, after which the court rendered judgment sustaining the exception of no causе or right of action, recalled the rule, and dismissed plaintiff’s suit with costs. Plaintiff has appealed.
Defendant, urges his exceрtion of no cause or right of action before this court. Xf the exception is good, and we believe it is, a determination of that question will dispose of the case. Counsel quotes Civ. Code, art. 699, in support of the exception, wherein it рrovides that the owner of an estate which is inclosed, and who has no way to a public road, may claim the right of pаssage on the estate of his neighbor to the nearest public road and shaE have the right to construct a road ovеr the land of his neighbor, but he shall be bound to indemnify his neighbor in proportion to the damage he may occasion. Counsel рoints out that plaintiff has in no way stated or indicated in his petition that he had offered to pay or had any intention to рay defendant for the land for use as a road or passageway; that under the law this would have tó be done before рlaintiff would have the right to sue for a right of way.
Plaintiff, on the other hand, claims and sets out in his petition: “That for more than twenty (20) years there has been a private road and right of passage continuously open and used by and for the benefit of petitioner’s said property over and across” the property of defendqnt. And defendant “has recently •closed and оbstructed said private, road * * * without any right so to do.”
Plaintiff claims that a road or passageway had long since been established, not by deed of course, but by the voluntary act of defendant ; and that plaintiff having availed himself of the use of the рassageway for a number of years, the right to use the same has become vested in plaintiff, hence when defendant closed up and obstructed the passageway it amounted to a violation of plaintiff’s vested rights, in consequence of which plaintiff has the right to require defendant to again open up the alleged passage or road and be enjoined from closing it or interfering with plaintiff’s right to pass over same.
Plaintiff nowhere in his petition alleges that the location of this road or passage has been fixed by and between him and defendant ; does not allege that there has ever been any express agreement by and between them regarding the passageway or the right on the part of plaintiff tó use it. Plaintiff еvidently, from the allegations in his petition, relies upon an implied right to use the way by reason of the allegation that there existed-the road or way, that he had been using it, therefore has the right to continue same unmolested.
In Baldwin Lbr. Co., Ltd., v. Todd,
The court held in that case that under Civ. Code, arts. 700-703, an implied right of way cannot be exercised until it is fixed by consent .of pаrties or judgment of court.
In Wemple v. Eastham,
Thе trial judge in the present case had the benefit of the testimony adduced upon trial on the merits. He evidently found no evidence of any agreement, verbal or otherwise, having ever been entered into by and between plaintiff and defendant fixing a passageway over defendant’s land for plaintiff to use. We have read the testimony in the record with this object in view, and we fail to find any such agreement. There is none set forth in any of the various title deeds filed in evidence;