Bellview Cemetery Co. v. McEvers

• Decision Date: 18 January 1912
• Citation: 174 Ala. 457,57 So. 375
• Parties: BELLVIEW CEMETERY CO. v. MCEVERS.
• Court: Alabama Supreme Court

57 So. 375

174 Ala. 457

BELLVIEW CEMETERY CO. v. MCEVERS.

Supreme Court of Alabama

January 18, 1912

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by C. F. McEvers against the Bellview Cemetery Company to abate a nuisance. From a decree overruling demurrers to the bill respondent appeals. Affirmed.

See also, 168 Ala. 535, 53 So. 272.

The amendment as to the road is as follows: "Sec. 17. Complainant avers that said bias road has been established and used by the public for a period of more than 20 years under a claim of right, and the persons under whom respondent claims title to said land for more than 30 years before this suit, and more than 20 years before respondent obtained title to said land, acquiesced in the use of said road and aided in maintaining said road, and the public and this complainant have acquired an easement in said land, and said road has been established by prescription. Complainant further avers that the establishment of said cemetery will result in the closing of said road, that said cemetery lots are laid off thereon, and said cemetery inclosure constitutes an obstruction in and across said road, and a public nuisance which ought to be abated."

Black &amp Davis, for appellant.

Blevins & Woodall, for appellee.

ANDERSON J.

This is the second appeal on demurrer in this case (168 Ala. 535, 53 So. 272), and this one presents no question not heretofore considered, other than the last amendment to the bill of complaint, which attempts to describe the road as a public one, and not as a mere permissive way as it was held to be, under the then averments of the bill, considered in the former opinion.

A majority of the court held that the bill was not multifarious because it sought to enjoin both the establishment and use of the cemetery and the closing of the road also. Regardless of the rule as to multifariousness prior to the present Code section 3095 of the Code of 1907 expressly declares: "A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties." Here the bill seeks to enjoin or prevent certain actual or threatened wrongs by the same respondent against the property of the complainant. The threatened injuries, though to be inflicted in different ways, tend to accomplish the same...