63 So. 1019 | Ala. | 1913
— This bill was filed for the purpose of enjoining the appellees from trespassing upon the appellant’s land. The bill alleges that the road commission of Fayette county has laid out, opened up, and constructed a public road across the lands of the complainant, without first condemning a right of way across the said lands, and “without paying him for the same, or in any Avise compensating him for the injuries and damage done.”
The road commission, on the other hand, claims, in the first place, that the county of Fayette paid the complainant for the land Avhich was taken from him for said road. The said commission claims, in the second place, that the complainant, when the road was laid out across his land, pointed out the land where he desired the road located, assisted in its location, and was present when the road was actually built, and made no objection thereto. The commission further claims that for several months after the road was located as stated the complainant acquiesced in its use by the public, but that two or three months after the location of the road the complainant began to obstruct the road at the points where it crossed his land, and in other ways to manifest his purpose to prohibit the public from using said road.
The cause Avas submitted to the chancellor for decree upon the bill and the answer, and upon the affidavits of certain parties who shoAV that they were acquainted Avith the facts.
It seem that J. T. Stamps and C. C. Stamps are brothers; that J. T. Stamps owns the E. % of the N. E. % of the N. W. 14 of section 28, and that C. C. Stamps owns the W. % of the N. E. 14 of the N. W. % of section 28; and that each brother resides upon his said 20-acre tract. The road in controversy was laid out and constructed across this 40-acre tract, the western half of which, as already stated, belonged to C. C. Stamps, and the eastern half to said J. T. Stamps.
The respondent established beyond' controversy that the road commission made a contract with J. T. Stamps whereby he was to receive $75 for a right of way over “a certain forty acres of land on his farm in Fayette county, Alabama,” and we are satisfied that the 40 acres referred to is the N. E. % of the N. W. % °f section 28; but, as already stated, C. C. Stamps, at that time, owned and was residing upon the western half of said 40 acres. We are also satisfied that the road commission, acting under instructions from J. T. Stamps, handed that $75 to R. F. Peters, an attorney, and that, when it was so left with said Peters, it was “for a right of way over the lands of C. C. Stamps and J. T. Stamps.” We are also satisfied that Peters paid this money to said J. T. Stamps, and that J. T. Stamps received it as the money of himself and said C. C. . Stamps. J. T. Stamps swears that he received the money; but he denies that he represented his brother in the
We think, however, that, when the road was laid out across the land of O. O. Stamps, the said O. C. Stamps knew all about it, and that he raised no objection to its being so laid. We also- think that, when the road was constructed, the said O. O. Stamps knew all about it, and that he raised no objection to such construction. In other words, we think that, while there was a conflict in the affidavits on the subject, C. C. Stamps certainly sat idly by and permitted the road to be constructed across his land without protest, and that he actually participated in laying the road out.
From ' this circumstance the chancellor might well have concluded that J. T. Stamps, when he made the agreement that the road should be constructed across the said 40 acres, represented not only himself but also his brother, C. C. Stamps, and that he had, in fact, received the money from Peters, the attorney, on behalf of himself and of his brother, C. C. Stamps.
However this may have been, the rule seems to- be well settled that, “if a man, by either words or conduct, has intimated that he assents to an act which has been done, and that he will not offer opposition to it, although it could not have been lawfully done without his consent, and he thereby induces another to do that from which the latter otherwise might have abstained, he cannot question the legality of the act he has so sanctioned to the prejudice of those who have given faith to his words or to the fair inferences to be drawn- from his conduct.” — Town of New Decatur v. Scharfenberg, 147 Ala. 367, 41 South. 119 Am. St. Rep. 81.
Affirmed.