Bass v. Sanders
| Decision Date | 18 July 1968 |
| Docket Number | 1 Div. 473 |
| Citation | 282 Ala. 546,213 So.2d 391 |
| Parties | Luster L. BASS et al. v. Grace SANDERS. |
| Court | Alabama Supreme Court |
J. B. Blackburn, Bay Minetee, and Fred W. Killion, Jr., Mobile, for appellants.
Chason, Stone & Chason, Bay Minette, for appellee.
This is an appeal from a decree in a declaratory judgment proceeding in which appellee Sanders sought to have a fifty foot easement declared between the property of appellant Bass on the north and appellant Killion on the south. The trial court granted the easement.
The property involved is in the shape of a parallelogram approximately 670 feet east and west and 50 feet wide. It is bounded on the east by U.S. Highway 98 and on the west by Mobile Bay. The shoreline and the highway parallel each other in a northeasterly-southwesterly direction.
Appellee alleged that the 50 foot strip had been used by the public as a road, that appellants attempted to vacate the strip without securing the assent of the county governing body, that the attempted vacation was void, that appellants had erected a fence across the strip and asked for a declaration of the rights of the parties.
Appellants filed pleas setting up res judicata and estoppel. Attached to the pleas were copies of the decree which dismissed, with prejudice, the bill of complaint filed by appellee against appellants in which she sought to quiet title in her to the 50 foot strip.
Appellee filed a motion to strike the pleas. Appellants asked that the pleas be set down for hearing; the request was granted, and upon a hearing, the trial court held that the pleas did not constitute a defense to the declaratory judgment proceeding and granted appellee's motion to strike the pleas.
Appellants filed separate demurrers which were overruled, and they the filed answers. The cause was tried on June 2, 1967 and the decree rendered on July 12, 1967. The decree determined that appellee was the owner of property east of the strip and joining the eastern boundary of Highway 98; that there is a justiciable controversy existing between all parties; that the attempted declaration of vacation was void and of no force and effect; that none of the parties are vested with the fee simple title to the 50 foot strip; that the 50 foot strip is subject to an easement in favor of the appellee and any and all other owners of the lands which are to be served by such strip; that the ad valorem taxes on such strip are to be paid by the appellee; that the appellants must remove the fence that they have erected across the strip and that the appellee is authorized to remove all trees and undergrowth which interferes with her easement across said land.
The first two assignments of error charge that the court erred in striking appellants' pleas.
The entire pleadings in appellee's previous suit to quiet title were not in evidence in the instant trial. As already noted, only the decree was an exhibit when the pleas were stricken. Later, the bill of complaint and the decree were made exhibits to the answers.
We hold that the trial court did not err in striking the pleas, because the decree in the quiet title suit showed on its face that it did not finally adjudicate all the claims between the parties relating to the land involved.
Paragraph A of the decree stated that the cause could 'be decided and final decree rendered without a ruling' on the demurrers, answers and pleas of respondents Bass and Killion.
Paragraphs B, C and D read as follows:
'The complainant has failed to prove that she was in peaceable possession of the property described in her bill of complaint at the time this suit was filed and has failed to prove that no suit was pending to test respondents' title to the property described in the bill of complaint at the time of the filing of this suit.
'The respondents have proved that they were in the actual possession of the property described in this suit at the time the bill of complaint in this cause was filed and at all times between the date of the filing of the said bill of complaint (October 16, 1962) and May 21, 1964.
'The complainant is not entitled to the relief prayed for by her in her said bill of complaint and the said bill of complaint should be dismissed with prejudice.'
It is obvious that the cause was dismissed because of failure to prove the statutory requirement of possession by the complainant for the maintenance of an action to quiet title under Tit. 7, § 1109, Code 1940.
The case of Gray v. Alabama Fuel & Iron Co., 216 Ala. 416, 113 So. 35, is dispositive of the question. The court said in reference to a prior suit to quiet title:
'We agree with counsel for appellant in the view that the decree in that case adjudicated nothing but the single fact that Mary Howard did not have the peaceable possession, actual or constructive, of the lands in controversy, at the time of the filing of her bill of complaint. The ...
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