50 So. 890 | Ala. | 1909
The bill was filed by the appellee against the appellant to remove an obstruction from, over, and across a road or way leading to and from appellee’s farm, which road or way crossed a part of appellee’s farm, which adjoined that of appellant. The bill alleges the ownership of the respective farms by appellee and appellant and those under whom they claimed, and a use of such way by the public continuously for a long period, 30 or 40 years; that the way was known both as a road and a street, and was so used for 40 years by appellee, her tenants, and those under whom she claimed, as well as by the public; that this use was at- all times open, notorious, adverse, and continuous; that the road in question led from appellee’s farm to Selma, Ala., the market place of appellee’s tenants and employes; that, with this road obstructed, appellee’s only Avay to market Avas obstructed; that she could not get to market by any other practicable route, without
The obstruction consisted of ditches and wire fences, placed across the road by appellant. A' map and plat of the lands belonging to appellee, to appellant, and to their neighbors is attached as a part of the bill, showing the location of the roads and of the obstructions as to the lands in question. While there is not a perfect correspondence between' the location of the road as made by the averments of the bill and that as it appears from an inspection of the map attached, yet the difference is only such as might reasonably be expected from such descriptions. The difference is slight, and not at all material to the equity or the sufficiency of the bill in its averments. The bill is professedly drafted after the form of the bill in the case of Cabell v. Williams, 127 Ala. 320, 28 South. 405. On the authority of that case, and that of Cochran v. Purser, 152 Ala. 354, 44 South. 579, the averments of the bill are sufficient.
The equity of the bill rests upon three grounds: First, prescription; second, dedication; third, right of way of necessity. The demurrers are addressed to the bill as a whole, and are not intended to test the equity as to any particular one of the three grounds. There maybe doubt as to the sufficiency of the averments as to one of the grounds, but not to all. The demurrers were therefore properly overruled.
We have not attempted to treat each phase of the bill separately, but only to determine the correctness of the decree from which the appeal is taken. The reporter will set out the opinion of the chancellor in the state
The decree of the chancellor is affirmed.
Affirmed.
