140 Ala. 365 | Ala. | 1903
Complainant’s right to have the obstruction erected by respondents removed so as to secure to him the enjoyment of his ferry franchise is predicated upon his title to a right of way alleged to have been acquired by him in either of two modes. His title to the way under the first of these modes, it is averred, was derived under and by virtue of a reservation contained in a deed through which the respondent, Mrs. Jackson, derived her title to the land upon which the easement claimed by complainant is asserted.
It is contended in the first place that the reservation is void for uncertainty in that the right of 'way reserved is not definitely described.
The reservation in the deed ivas the equivalent of a grant by the grantee to the grantors of a way (23 Am. & Eng. Ency. of Law, 2d ed., p. 9), and if it was in existence at and prior to the execution of the deed, or if it was subsequently located and used by the grantors or their assigns with the acquiescence of the grantee, this would operate as an assignment of the right and is deemed to be that which Avas intended to be conveyed by the reservation, and is the same in legal effect as if the location so selected and used had been fully described by the terms of the grant.—Wharton v. Hannon, 101 Ala. 554; 2 Lewis on Eminent Domain, § 290.
The facts averred in the bill clearly prevent the reservation from being void for uncertainty in the description.
It is next insisted that the reservation can only be to the grantor and not to a stranger. This is undoubtedly true. But there is no inhibition upon the grantor conveying his interest in a right of way owned by him to another, which is alleged was done in this case. It is expressly averred in the bill that complainant derived title to the easement claimed by him through mesne conveyances from the grantors who reserved it to them
The other mode by which complainant claims title to the right of way is alleged to be by adverse possession. The averment is that “Complainant and his predecessors through whom he claims have successively, for moré than twenty years, been in open, notorious, hostile and adverse use of said * * * right of way and road,” etc. The objection urged is that the allegation does not contain the words “continuous and exclusive.” Suffice it to say that the sufficiency of the allegation is being tested by motion to dismiss for want of equity and not by demurrer. But if the point had been taken by demurrer, it would be untenable since the use of the word “adverse” is sufficient without the other qualifying adjectives. The bill clearly has equity and the motion to dismiss it was properly overruled. Of course, no error could be predicated for refusing to dissolve the injunction on that ground. Nor was the motion to dissolve the injunction improperly denied on account of the averments of the answer. While it denies that complainant derived his title by conveyance to the easement, he claims from Larkin as averred in the bill, it seeks to avoid his title founded on adverse use by asserting that the use was under a contract with respondent, Mrs. Jackson.—Mabel Mining Co. v. Pearson Coal & Iron Co., 121 Ala. 567.
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 injunction.—Cabbell v. Williams, 127 Ala. 320; Lide v. Hadley, 36 Ala. 627; see also, 23 Am. & Eng. Ency. Law, (2d ed.) p. 38, and cases there cited in note S.
Affirmed.
