32 So. 2d 517 | Ala. | 1947
The question on this appeal is whether there was error in sustaining the demurrer to the bill filed by appellant.
The prayer of the bill is to establish and define the true and correct boundary line between the adjoining city lots of complainant and respondents, involving also the claim of an easement along said line extending partly on property of respondents; and, pending the final hearing and determination of said boundary line, that a temporary injunction issue restraining respondents from interfering in any way with the use by complainant of the driveway or alleyway between them; that on the final hearing the injunction be made permanent. *629
Such was the nature of the case of Fuller v. Blackwell,
It is alleged in the bill that a dispute exists between complainant and respondents as to the true and correct boundary line between their respective properties. This gives equity to the bill in that aspect. Ford v. Beam,
The fourth paragraph of the bill as amended alleges the existence of an alleyway along the western boundary line of complainant's property, situated entirely or partly on complainant's property, and serves said property as a means of ingress and egress to and from the rear of it, and that for more than 25 years next preceding the filing of this suit has been in the possession of and used exclusively by complainant and her predecessors in title under claim of ownership for the purpose of affording means of ingress and egress to and from the rear of her property.
To sustain a bill to enjoin the obstruction of an easement, except as incidental to other equitable relief, it must appear that the remedy at law is either doubtful, difficult or not sufficient to grant adequate relief. Lide v. Hadley,
But the bill must sufficiently show the existence of the easement to justify such relief. And if the claim of an easement is by prescription, and if complainant sets out the source of his title, the allegations sufficient to sustain that claim should be made in a bill seeking to enjoin its obstruction, (Beard v. Hicks,
The allegations of the bill being that the complainant and her predecessors in title have been in possession of it and used it exclusively for more than 25 years next preceding the filing of the suit, claiming to own such right, fairly show that such. possession was without interruption; and sufficiently allege the other necessary elements of adverse possession. Jackson v. Snodgrass,
The bill contains equity, and is not subject to any demurrer assigned to it for the establishment of a disputed boundary line; also to enjoin the obstruction of an easement existing if when the line is settled the right of way, if it exists, extends across it on to respondents' premises.
Appellant seems to be uncertain that the bill in both aspects is sufficient against all the grounds of demurrer addressed to the bill as a whole, and argues that they should not be considered to test each aspect separately, claiming that although both aspects may be defective such a demurrer should be overruled.
Referring to that contention, we find our cases have spoken as follows: In Thompson v. Brown,
Our cases do not mean that if none of its aspects sets up matter of equitable cognizance the demurrer addressed to the bill as a whole, should be overruled. So that the question in passing on such a demurrer is not, as appellant argues, solely of whether there is more than one aspect, but whether each such aspect fails to assert matter of equitable cognizance. If one or more asserts matter of equitable cognizance, though not properly pleaded, the demurrer to the bill as a whole should be overruled.
Appellee argues that in passing on the demurrer we should consider the effect of another bill filed after the one filed in the instant case because reference is made to it in the demurrer, and it is pending in the same court (Circuit Court, in Equity, in Mobile County). Such other bill is not referred to in the bill as amended in the instant case to which the demurrer was directed. When it is sought to raise such a question by demurrer, the pleading to which the demurrer is directed must refer to the other proceeding Cogburn v. Callier,
The court will not search other records, not mentioned in the bill, and write into the bill the' matter there disclosed, when considering its sufficiency on demurrer. Whaley v. First National Bank, supra.
A demurrer is addressed to the face of the bill. If not thus supported, it is a speaking demurrer, Samples v. Grizzell,
We are here treating the sufficiency of the bill as amended. An amendment relates back and becomes a part of the bill as fully as though it had been originally incorporated in it, — Rule 28(f), Equity Pleading, — so long as it refers to the same property and parties, and when this is not apparent on the averments of the pleading it is a question of fact. Section 239, Title 7, Code; 1 Corpus Juris Secundum Abatement and Revival, § 38.
If the purpose was not merely to correct a misdescription but change entirely the property involved, it does not so appear from the face of the amended bill. Presumptively therefore the amendment related back to the filing of the original bill. We think each aspect of the bill has equity and is not subject to the demurrer addressed to it. And the bill as a whole is not subject to the demurrer addressed to it.
The appeal was not improperly taken under section 755, Title 7, Code. The decree sustaining the demurrer was dated January 21, 1947. The appeal bond was approved February 19, 1947, which was within 30 days as required by that statute. True that was an interlocutory decree and not final. But complainant was not required to wait for a final decree before appealing under that statute.
There are certain petitions which are not bills in equity when section 755, Title 7, supra, does not apply. Such are the proceedings to which appellee refers in brief.
We think the demurrer should have been overruled, and not sustained. A decree will be so entered here.
Reversed, rendered and remanded.
GARDNER, C. J., and LAWSON and STAKELY, JJ., concur. *631