Barnes v. Kent
| Decision Date | 20 June 1974 |
| Citation | 296 So.2d 881,292 Ala. 508 |
| Parties | A. D. BARNES and Zorado H. Barnes v. R. B. KENT. SC 509. |
| Court | Alabama Supreme Court |
Bell & Lang, Sylacauga, for appellants.
Dixon, Wooten, Boyett & McCrary, Talladega, for appellee.
The appellee Kent owns some seventeen hundred acres of land situated in Talladega County located within a rectangle of roads running north and south and east and west. U.S. Highway 231 is to the west of Kent's property, and the Old Sylacauga Highway is to the east. Kent has access to his property on the north from a public highway. According to the allegations contained in his pleadings and proof, he has no access to the above mentioned public roads lying to the east and west of his property.
This suit is chiefly concerned, however, with Kent's access to his property on the south side.
We gather from the evidence that a public road runs roughly east and west to the south of Kent's property, and connecting U.S. Highway 231 and the Old Sylacauga Highway, and Kent's property comes to within 100 feet or more of this road on the south. In other words, a strip of land some 100 feet or more, depending on the direction of this road on the south, which does not run in an exactly straight line, separates Kent's land from this road.
The appellants own this above mentioned strip.
A good portion of the testimony presented below is directed toward showing that this road to the south of Kent's land was a public road, and the evidence is overwhelming in its tendencies establishing this fact.
The evidence further tends to show that for seventy years or longer an access way or easement had existed from this public road on the south across the strip of land owned by the Barneses to the land owned by Kent, which access had been used to reach a school house, a residence, and 'the old Farris homestead' located on Kent's land. The easement had been used throughout the years.
Shortly after the Barneses purchased their land, which lies north and south of the public road on the south of Kent's property and which included the strip above mentioned, they had their land surveyed.
According to Kent's testimony, after the Barneses had had their land surveyed he agreed with the Barneses to erect a fence along their mutual boundary line, and at this time it was agreed to substitute a new access easement in lieu of the former easement, the new easement to be at a point where the strip of land owned by the Barnesses was at its narrowest, and closer to U.S. Highway 231.
The line fence was erected by Kent, and a gate or gap was built into it at the location of the new easement. The old easement was abandoned, and Kent began using the new easement and his use thereof continued until shortly before the present proceedings were instituted.
On 29 August 1969, Kent filed a bill alleging in substance that the Barneses had placed a fence and gate across the public road (the road running south of Kent's property) which interfered with Kent and others in passage along a public highway; that said obstruction constituted a peculiar, particular, and continuing nuisance to Kent, his employees, and guests, and that he had requested the Barneses to remove the same. The bill prayed that the Barnesses be ordered to remove the obstruction and enjoined from further obstructing the road.
The Barneses' demurrer to this bill being overruled, they filed an answer within the time allowed.
Thereafter, on 18 December 1969, Kent filed a petition requesting a temporary restraining order enjoining the Barneses from interfering with Kent's use of the road. This petition further averred that more recently the Barneses had placed an additional barricade or fence blocking the gate located in the fence erected by Kent, thus preventing Kent's access from his land to the highway. In this petition Kent prayed that a temporary restraining order issue prohibiting the Barneses from obstructing Kent's free use of the public road described in the original bill, and also from interfering with Kent's access to the public road by means of the easement from his land to the public road.
The Chancellor granted a temporary injunction enjoining the Barnesses from interfering with Kent's free access to his land over the public road and over the access road, an injunction bond in the amount of $500.00 being ordered.
On 29 December 1969, Kent secured an order directing the sheriff to remove the barricades placed by the Barneses.
On 17 May 1972, Kent filed a petition requesting that the Barneses be held in contempt of court for violating prior orders of the court.
After this, according to appellants' brief:
'All of the various aspects of this case were consolidated for hearing, by agreement, and the case came on for trial before the Honorable William C. Sullivan, Presiding Judge of the Circuit Court of Talladega County, Alabama, on 19 January 1973.'
In the hearing Kent presented a number of witnesses. The Barneses presented no witnesses. The Chancellor took the matter under advisement.
On 27 February 1973, Kent filed an amended complaint 'as heretofore amended' by amending the prayer to the effect that the court make and enter a decree permanently restraining the Barneses from obstructing the public road, and from obstructing the access road. This amendment further stated that a copy of the amendment had been served upon the respondents (Barneses) by mailing a copy of the same, postage prepaid, to the attorneys for the Barneses.
On 30 May 1973, some three months after the filing of the above mentioned amendment, the court entered its final decree.
The Chancellor ordered, adjudged, and decreed that the Barneses, their successors and assigns, be strictly enjoined from interfering in any manner with the free and uninterrupted passage by Kent, his servants, agents, employees, or invitees over the public road and also over the access road.
The Barnesses have perfected their appeal from this decree.
As a threshold point the appellants argue that obstructing a public road is a public nuisance which must be abated by the state in an action brought by the state. Such is the holding in a number of our cases. See Strickland v. Lambert, 268 Ala. 580, 109 So.2d 664; Scruggs v. Beason, 246 Ala. 405, 20 So.2d 774; Hanna v. Harman, 230 Ala. 620, 162 So. 109. In fact Section 1084, Title 7, Code of Alabama 1940, provides in part that:
'* * * Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state.'
It must be noted, however, that the stringency of the above rule is modified by the provisions of Section 1086, Title 7, Code of Alabama 1940, which provides:
'If, however, a public nuisance...
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United States v. Olin Corp.
...to an individual plaintiff who can show harm distinct in kind and degree from that suffered by the public in general. Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974). Plaintiffs have not made such a Moreover, it is also clear that a private citizen has no action to enjoin a nuisance wher......
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Hall v. North Montgomery Materials, LLC, No. 2060946 (Ala. Civ. App. 6/13/2008), 2060946.
...unique to him." Strickland v. Lambert, 268 Ala. at 584, 109 So. 2d at 667. Of all the Alabama "special injury" cases, Barnes v. Kent, 292 Ala. 508, 296 So. 2d 881 (1974), Scruggs v. Beason, 246 Ala. 405, 20 So. 2d 774 (1945), and Sloss-Sheffield Steel & Iron Co. v. Johnson, 147 Ala. 384, 41......
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Hall v. North Montgomery Materials LLC
... ... Strickland v. Lambert, 268 Ala. at 584, 109 So.2d at 667. Of all the Alabama “special injury” cases, ... Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974), ... Scruggs v. Beason, 246 Ala. 405, 20 So.2d 774 (1945), and ... Sloss-Sheffield Steel & Iron Co ... ...
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City of Birmingham v. City of Fairfield
...for abatement when he has suffered damages different in degree and kind from those suffered by the general public. See Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974). However, the Abatement remedy is limited when the conduct giving rise to the damage is Statutorily authorized. The rule ......