140 Ala. 268 | Ala. | 1903
The original bill in this cause was held by tlie chancellor, upon submission upon demurrer and motion to .dismiss for want of equity, to be defective but to contain equity with leave to complainants to amend. The amendment was made in the form of a substituted bill, which is a permissible practice frequently indulged in.
To this substituted bill a demurrer, consisting of many assignments, was interposed and also a motion to dismiss for want of equity. The cause ivas then submitted for decree in vacation upon the demurrer and motion, resulting in a decree dismissing the amended bill for want of equity. From that decree this appeal is prosecuted.
The purpose of the bill is to compel the respondent to remove the obstruction placed by him across a public highway which prevented its use by the complainants and to restrain him from further obstructing their passage along and over it. The bill alleges that the road which is obstructed and closed by the respondent is a public road — which confessedly is a mere conclusion of the pleader and would doubtless be subject to demurrer, (Walker v. Allen, 72 Ala. 456); the other facts averred being wholly insufficient to show that such is its character, the presumption being that its use was permissive. In other words, in order to establish a highway by prescription it must appear that the use by the public has been adverse to the owner under claim of right and not by his permission for a period of twenty years or more. The mere use of land for the purpose of a road carries with it no presumption of adverse claim- or claim of right to so use it.—Whaley v. Wilson, 120 Ala. 502; Trump v. McDonnell, 120 Ala. 200, 204; Elliott on Roads and Streets (2d ed.) §175. But the averment that it is a public road is sufficient to withstand the attach made by the motion to dismiss for want of equity. It is an amendable defect which may be cured by an amendment of the facts from which the conclusion is drawn or upon which it is based. A motion to dismiss is not the equivalent of a demurrer and does not reach
This brings ns to a consideration of tlie only other point necessary to be considered on this appeal. It is Avhether the complainants show any special or peculiar damage sustained by them different from that suffered by the general public. If they do, then under our decisions the chancery court will assume jurisdiction to abate the nuisance sought to be abated by this bill, by preventing its continuance by the aid of an injunction. “This will be done, either on 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 threatened, will especially be restrained with much favor.”—City of Demopolis v. Webb, 87 Ala. 666; Cabbell v. Williams, 127 Ala. 327.
The facts alleged are that the road obstructed by respondent, “is the only outlet for the complainants from their homes and their farms towards the south and towards their county seat, their church, their mill and their school house, and that unless the said road is kept open to the use of the complainants as a public highway, complainants will be entirely cut off from an outlet from their farms toward their county seat, mill, church and school, and that if said road is closed up it will not only greatly inconvenience complainants but will damage complainants’ farms, in that, their farms will greatly decrease in value on account of being cut off from an outlet as aforesaid.”
As we understand this averment, it is that the complainants will be greatly inconvenienced in getting from their homes and farms to their county seat, etc., if the highway is closed, because they will be entirely cut off from these places which will greatly damage the value of their lands. This certainly makes a case of special or peculiar injury to them not suffered by the general public and authorizes the maintenance of this bill.—Cabbell v. Williams, supra; Corning v. Lowerre, 6 Johns. 439; Sheedy v. Union Press Brick Works, 25 Mo. App. 529;
Appellee’s counsel make quite an extended argument to sustain the objection taken to the bill by the demurrer interposed to it. The questions thus raised are not before us for review.
The decree dismissing the bill must be reversed, and one will be here entered overruling' the motion to dismiss for want of equity.
Reversed and rendered.
