Beard v. Hicks

• Decision Date: 17 June 1909
• Citation: 163 Ala. 329,50 So. 232
• Parties: BEARD v. HICKS.
• Court: Alabama Supreme Court

50 So. 232

163 Ala. 329

BEARD v. HICKS.

Supreme Court of Alabama

June 17, 1909

Rehearing Denied June 30, 1909.

Appeal from City Court of Gadsden; John D. Disque, Judge.

Action by John Hicks against J. K. P. Beard. From a judgment for plaintiff, defendant appeals. Affirmed.

The first count is as follows: "The plaintiff claims of defendant $1,000 damages for wrongfully obstructing a certain alley in the city of Gadsden. And plaintiff avers: That he is the owner of a certain lot in the city of Gadsden, it being the lot on which plaintiff resides with his family. That said lot fronts on said alley, and plaintiff's only way of ingress and egress to and from said lot is on and over said alley. That plaintiff owned said lot on and prior to the 1st day of December, 1906, and has continuously owned said lot since said date up to the present time. Said alley furnishes and has furnished to plaintiff his only rightful and lawful method of ingress and egress to and from said lot that plaintiff has or has had, except a footpath which he has been allowed use by the owners of adjoining lots, which said footpath has been used not as of right, but by permission of said owners. And plaintiff avers that on and prior to the said 1st day of December, 1906, and up to the present time he has been and of right is entitled to use said alley as a means of ingress and egress to and from said lot. Plaintiff avers that on, to wit, the 1st day of December, 1906, the defendant knowingly and willfully and intentionally obstructed the said alley by building a fence across the same in such a way as to prevent the use of said alley for the purpose of ingress and egress to and from said lot by plaintiff. And plaintiff avers that since said date, and up to the present time, defendant has maintained said obstructions, and has thereby prevented the use of said alley by plaintiff for ingress and egress to and from said lots." Count 2 is same as 1, except that it is alleged to be a public highway; that is, the alleyway obstructed is alleged to be a public highway.

The oral charge excepted to is as follows: "In the event the jury find the issues in favor of the plaintiff, they will assess such damages as to them seem reasonable and right."

The following charges were refused: (1) "The court charges the jury that, if the jury believe all the evidence in this case, there is no public alley at the point where said fence is located and from said point north to the creek." (2) "The court charges the jury that, before the plaintiff can recover in this case, the jury must be satisfied from the evidence reasonably that the alleged alley at the point where said fence is located, and from thence north to the creek, is a public alley; that such alley became a public alley, either by grant, dedication, or prescription for more than 20 years." (4) "The court charges the jury, before the plaintiff can recover in this case, he must show by the evidence to your reasonable satisfaction that he is the owner of the lot on which he lives with his family, that said lot fronts on a public highway, that plaintiff owned said lot from the 1st day of December, 1906, and now owns it, and that the defendant willfully and maliciously built a fence across said public highway, thereby damaging plaintiff." (5) "The court charges the jury that under the evidence in this case there is no public alley from the south line of defendant's property north to the creek, either by grant dedication, or prescription." (6) Affirmative as to the second count. (7) "The court charges the jury that unless the plaintiff is shown by the evidence reasonably that plaintiff has been damaged, and to what extent, then the law says that plaintiff must fail as to such damages." (8) "The court charges the jury that there is no evidence in this case that plaintiff is the owner of the Hicks lot, as averred in the complaint, and your verdict must be for the defendant." (9) "The court charges the jury that there is no evidence in this case that plaintiff has any right, title, or interest in any part of that land cut off by said fence and lying north of said fence."

Culli &amp Martin, for appellant.

Goodhue & Blackwood, for appellee.

ANDERSON J.

"In an action for injuring or interfering with an easement, the complaint must allege plaintiff's ownership of the easement in question; but it need not set out the particular manner, whether by prescription, grant, or otherwise, in which the title was acquired--it being sufficient to allege generally plaintiff's right to the easement and a violation of this right by defendant. If, however, plaintiff undertakes to set out his source of title, the complaint must allege all the facts necessary to be proved to establish the same." 14 Cyc. 1220; Gerber v. Grabel, 16 Ill 217; Story v. Odin, 12 Mass. 157, 7 Am. Dec. 46; Hall v. Hendrick, 125 Ind. 326, 25 N.E. 350. The first count avers that the plaintiff is the owner of and in the possession of a lot fronting on the alley and is entitled to the use of said alley as a means of ingress and egress to and from said lot, and was not subject to the demurrers interposed thereto.

The cases of Whaley v. Wilson, 120 Ala. 504, 24 So. 855 and Trump v. McDonnell, 120 Ala. 200, 24 So. 353, are easily differentiated from the present case and have no bearing on the sufficiency of the complaint...