Card v. Cunningham

• Decision Date: 18 January 1917
• Docket Number: 8 Div. 879
• Citation: 199 Ala. 222,74 So. 335
• Parties: CARD v. CUNNINGHAM.
• Court: Alabama Supreme Court

74 So. 335

199 Ala. 222

CARD v. CUNNINGHAM.

8 Div. 879

Supreme Court of Alabama

January 18, 1917

On Rehearing, February 15, 1917

Appeal from Chancery Court, Jackson County; James E. Horton, Jr. Chancellor.

Suit by Maria J. Card against H.M. Cunningham. Judgment for defendant, and plaintiff appeals. Reversed and remanded. On application for rehearing, former opinion sustained.

Bouldin & Wimberly, of Scottsboro, for appellant.

Milo Moody, of Scottsboro, for appellee.

McCLELLAN J.

The bill in this cause, filed by the appellant against the appellee, seeks to abate a public nuisance effected by the act of the appellee in placing a wire fence within the confines of a public roadway, which, the appellant, insists had long become established by prescription. The chancellor denied the complainant any relief; it being his opinion that appellee's fence did not obstruct the space previously actually used for road purposes. The chancellor expressly declined to decide whether the lane in question was a public road, and, in consequence, whether the complainant would have been specially injured by the obstruction complained of if the way had been established as a public highway. Our opinion is that the primary question, necessary to be decided, was and is whether the roadway described in the pleadings and in the evidence was in fact a public road at the time appellee built his wire fence about the south line of it.

The application of the rules of law reiterated, as upon apt authority in this court, in Moragne v. City of Gadsden, 170 Ala. 126, 127, 54 So. 518, to the conclusions of fact to which a careful consideration of the evidence has led, requires a finding that the roadway in question had become a public highway by prescription before appellee constructed his fence about the south line thereof.

The clear preponderance of the evidence establishes the fact that the present wire fence occupies a line, of varying distances north of the place or line whereon rested the "old fence," which, in our opinion, afforded the south boundary line of the roadway in question. To the extent that the new wire fence appreciably exceeds, as it does at many points, the line fixed by the "old fence," the appellee's wire fence, recently constructed, is an encroachment upon the public highway established by more than 20 years of use by the public.

If this roadway had continued, throughout more than 20 years prior to the construction of appellee's wire fence, to be a way over unfenced, open lands, there would have been occasion to apply the rules of law pertinently alluded to in Rosser v. Bunn, 66 Ala. 94, 95, where account was taken of the distinction which must exist between roadways over unreclaimed lands and roadways which, for more than 20 years, have been defined by the erection and maintenance of fences or barriers indicating the line of demarcation between the roadway and the lands thus reclaimed. Cochran v. Purser, 152 Ala. 354, 356, 44 So. 579.

The decision of this court in Merchant v. Markham, 170 Ala. 278, 54 So. 236, evinces no intent to depart from the rules of law reiterated in Moragne v. City of Gadsden, supra. Indeed, it is quite clear from a...