Cabbell v. Williams

• Decision Date: 11 May 1900
• Citation: 28 So. 405,127 Ala. 320
• Parties: CABBELL, v. WILLIAMS.
• Court: Alabama Supreme Court

28 So. 405

127 Ala. 320

CABBELL, v. WILLIAMS.

Supreme Court of Alabama

May 11, 1900

Appeal from chancery court, Hall county; Thomas H. Smith Chancellor.

Bill by Polly Williams against Robert Cabbell to enjoin defendant from maintaining an obstruction of a public road. From a judgment overruling demurrers to the bill, defendant appeals. Affirmed.

The bill in this cases was filed by the appellee, Polly Williams against the appellant, Robert Cabbell, and sought to have the defendant enjoined from maintaining an obstruction of a public road. The facts averred in the bill are sufficiently stated in the opinion. The defendant demurred to the bill upon 15 grounds. Those grounds of the demurrer which are insisted upon by the counsel for the appellant, and which are reviewed on the present appeal, were as follows: "(2) Because the bill shows that it is filed by a private individual for the abatement of a public nuisance." "(5) Because said bill is without equity, in that it fails to aver the assent of the owner of the soil to the use of said road as a public highway for a period of twenty years." "(9) Because said bill fails to aver that said road was used by the public adversely as a public highway for period of twenty years. (10) Because complainant has a complete, perfect, and adequate remedy at law." "(14) Because said bill does not aver that said road has ever been worked or kept up by the public. (15) Because said bill fails to aver that the defendant acquiesced in the use of said road as a public road for any period whatever." Upon the submission of the cause upon these demurrers, the chancellor overruled them. From this decree the defendant appeals, and assigns the rendition thereof as error.

J. T Collins, Jr., and De Graffenried & Evins, for appellant.

Thos E. Knight, for appellee.

TYSON J.

Complainant's bill sought to have the defendant to remove two wire fences erected by him across a certain road for the purpose of preventing and obstructing the complainant and the traveling public from traveling along and over said road. It is averred in the bill that this road was originally dedicated by one Paul Cameron, the owner of the land which it traverses, or those under or through whom he held and acquired the property, as a public highway, and was accepted by the public more than 20 years prior to 1874, and more than 40 years prior to the erection by the defendant of the wire fences across it. The bill further shows that the complainant acquired a title to a portion of the tract of land across which this road runs through mesne conveyances from Cameron, and that the defendant also acquired another part of said tract directly from Cameron. It is also shown by the averments of the bill that a portion of the lands of the complainant and the defendant abut upon this road, and are separated by it. The points at which, however, the obstructions are located, and upon the defendant's lands. The bill expressly avers that these obstructions absolutely prevent the egress by the complainant from her dwelling to the public road known as the "Greensboro and Cedarville Road," unless she goes through private lands belonging to others. The Greensboro and Cedarville road, it appears, is the only public highway, accessible to the complainant, leading to Greensboro, Ala., which is her market town. It is unnecessary to set out the evidential facts averred in the bill to show a dedication and acceptance by the public, further than to say that a continuous use by the public of this road as a highway for over 30 years before the obstructions were erected by the defendant sufficiently appears.

Fifteen grounds of demurrer were assigned to the bill, which were overruled, and this appeal is prosecuted from that decree. Only the second, fifth, ninth, tenth, fourteenth, and fifteenth grounds are argued in the brief of appellant's counsel, and we will confine our consideration of the case to the questions raised by each of them.

The second goes to the right of the complainant to maintain the bill, for failure to show any special damage sustained by her, different from that suffered by the general public. In Elliot, Roads & S. 474, the rule on this subject is stated to be this: "It is a general rule, however, that no one can maintain an action for a defect or an obstruction in a highway unless he has suffered some special or peculiar injury. The mere fact that he is, in common with all others who have occasion to use the way, delayed by an obstruction, will not ordinarily entitle him to damages, but diversion of custom from a shop or colliery by an obstruction in the highway will warrant a private action; and where one had started upon his journey, but was compelled to go back by reason of an obstruction, whereby he suffered loss, it was held that he had shown 'a peculiar damage,' for which he was entitled to maintain an action. So, an abutter has a special interest in a highway giving him the right of access to his premises, and may maintain an action for an obstruction which...