Stewart v. White

128 Ala. 202 | Ala. | 1900

SHARPE, J.

By this suit the complainants, claiming to sue “as deacons of Liberty Baptist Church,”' seek to enjoin the maintenance of -a mill dam by which, by raising the waters of Hurricane Creek, is alleged to have injured a spring -and -also a place used for administering the rites of baptism in which they claim to hold rights for the church which is alleged to be an unincorporated religious- association. Damages are also sought for alleged past injury resulting from the unlawful erection of the, dam.

The bill alleges the existence -of a deed which purports to have been -made in 1858 by twelve persons: signing as grantors, to “William Robertson and Jas.. H-orton as deacons of Liberty (H. Creek) Baptist •Church and to their successors as deacons of said church” to whom, the deed purports to convey for the use of the church, a lot of land described as “commencing at the 'bridge on the Jacksonville & Rome road on the south bank of Hurricane Creek running ■down said creek 22 rods to a water oak thence southwest to' a corner, thence northeast 19 rods to said Jacksonville & Rome road, thence along said road 22 rods to the beginning in the...... quarter of section.... in township twelve, of l’ange ten, containing two .and three-fourths of an acre more or less.” The deed .also contains, the following clause: “Said party of the first part [the grantors] for and in consideration as aforesaid give and grant to said church the privilege of using above said bridge and road, unincumbered by them and their -assigns, reserving to themselves the privilege of using said spring -also, and the party of the first part for themselves, their heirs, administrators -and executors do and by these presents will forever warrant and defend said titles w aforesaid to said church from their heirs and every person or persons whatsoever.”

The bill -further avers that “the said .church through its deacons for the use and benefit of said church, has been in the sole possession and continuous use of said spring since 1858 to the present time, and has had the control of said spring through its deacons for the use and ‘benefit of said church. That, their possession has been open, notorious and -adverse for more than 'twenty years before the filing of this bill. That the deacons of said church have been in the open, notorious and adverse possession of said creek on the north boundary of said lot for the use and benefit of -said church for baptismal purposes for more than twenty years prior to the filing of this suit, and that no -one has exercised any control either of said spring or the -creek along the northern boundary of said lot, from 1858 to the time of the obstruction-averred except said church. That the said church has kept said spring in good condition by putting in various improvements from year to year, and has kept said stream and its banks in good condition for 'baptismal purposes during all the years of its ownership of said lot.”

To entitle ’complainants to- relief it must appear from the bill that they have either in an individual or representative capacity, some property right in the creek or spring sought to be protected. The deed referred to cannot be depended on as a source of title for two reasons; first, it is not ’Shown that the grantors therein ever owned the property, and second the deed as here exhibited does not purport to convey any interest in either the creek or spring. The rule of construction whereby conveyances describing lands as bounded by or running along a non-navigable stream are held to convey the grantor’s title to the stream’s center, is not applicable to this deed even if it be assumed that the grantors had such title. Here the description is. by lines running from Object to object and having designated lengths so as to enclose a given quantity of land. The line which commences at the bridge on the south bank of the creek, runs 22 ■rods down the creek to a water oak which distance is computable by a straight line as is the lengths of the other lines. For all that appears ¡the water oak and consequently the line may or may not be on the water’s edge, but apparently the words “down the creek” are intended to indicate ¡the general direction of the line rather than that the creek, whether meandering or not, should form that boundary.

As to the spring, which is nearby but off the church lof, it is alleged in the bill as a conclusion that its use was “granted to said deacons for the use and benefit of said church.” The only mention made of a spring in the deed as copied in this, transcript is in the language above quoted wherein is expressed a reservation in the grantors of the privilege of using “said spring.” In ¡this there is no semblance of a conveyance to any interest in the spring. The allegation of the deed’s contents, controls the alleged conclusion as to the deed’s effect, so that the bill cannot 'be taken as averring a grant of an easement in the spring.

Complainants also assert rights by prescription in both the spring and creek. The use which gives title by prescription must have been for at least twenty years; but however long continued, if it is merely by the permission or without the knowledge of the landowner the use will never confer title. To be adverse to the owner the user must have been such as to exclude him from possession and must have been continuous, uninterrupted and under a claim of right. Steele v. Sullivan, 70 Ala. 589; Gage v. M. & O. R. Co., 84 Ala. 224. By the theory of prescription and likewise of title by adverse possession, a grant is presumed from long acquiescence, of thcj landiowner in the exercise of asserted rights which are inconsistent with his own. As in the case of an actual deed there must be some person, either natural or artificial, who can take title. The church society collectively, being unincorporated, was without capacity to acquire or hold title. — Baptist Asso. v. Hart's Extrs. 4 Wheat. (U. S.) 27; Beaty v. Hurtz, 2 Pet. (U. S.) 212. As deacons, no persons have capacity either to acquire in themselves or to transmit to successors in that ecclesiastical office any rights amounting to title in easements. Deaconship in a church pertains alone to the church policy, and is not an office existing or recognizable in our secular government. It confers no right to sue in the 'official capacity, and therefore the present suit cannot be considered as so brought. — Allison v. Little, 85 Ala. 512. The deaeonship might by the society’s regulations be made to carry with it an agency in the control and management of property, and it might be mentioned in a deed as descriptive of persons who might take successively under a conveyance made for the benefit of the society, but the legal relation of those occupying the office would be that of trustees and not that of church officials.

If it would be conceded that the words “as deacons,” etc., used in the bill as stating how ¡the complainants sue, and how they have acquired title, may be treated as merely descriptio personae or as surplusage, and if it be further conceded that the complainants might as individuals maintain a suit in behalf of themselves and other members of the church for the protection of property rights belonging to them jointly, 3ret this bill fails to show the existence of such rights. It does not attempt to show that any particular person of persons have acquired title by user had either by himself or through others with whom he is in priv^ of estate, nor is the bill framed for relief upon the theory of individual ownership. For the reasons stated the ■demurrer should have been sustained.

If the deed referred to were shown to have been made by the owner of the land, and were further shown ‘to have granted an easement in the spring according to the conclusion stated in the bill, then the complainants, answering the description of successors to the original takers, would hold as trustees of the society, and as such might sue on account of injuries to the spring; this under the jurisdiction of equity over charitable trusts as declared in Burke v. Roper, 79 Ala. 138. That the deed has such effect appears to have been assumed in briefs of counsel and in the chancellor’s written opinion. This fact leads us to suspect that an error has occurred in copying the deed either into the transcript or the exhibit, but the error is not self-correcting, and we must determine the effect of the instrument as it is presented to us.

Let the decree be reversed and the cause remanded.