Cochrane v. Purser

• Decision Date: 02 July 1907
• Citation: 44 So. 579,152 Ala. 354
• Parties: COCHRANE ET AL. v. PURSER.
• Court: Alabama Supreme Court

44 So. 579

152 Ala. 354

COCHRANE ET AL. v. PURSER.

Supreme Court of Alabama

July 2, 1907

Appeal from Chancery Court, Tuscaloosa County; Alfred H. Benners Chancellor.

Bill by H. H. Cochrane and others against Mrs. S. A. M. Purser. From a decree dismissing the bill for want of equity, complainants appeal. Reversed and rendered.

Henry Fitts, for appellants.

Mayfield & Verner, for appellee.

SIMPSON J.

The bill in this case was filed by the appellants against appellee, and sought to enjoin appellee from excavating obstructing, building upon, or otherwise interfering with a public alley. The bill alleges that complainants' property lies immediately "along a public alley," describing it; that said alley has "from time immemorial * * * been in general use by the public"; that it "has existed as a passageway, open to and in general use by the public, for so great a length of time that the memory of man runneth not to the contrary"; that "it has existed as a public alley for more than 20 years before the filing of the bill, and had been and continued in general public use for more than 20 years prior to the date at which the respondent acquired title." The appeal is from the decree granting the motion to dismiss the bill for want of equity.

This court has said, where a bill alleged that the road which was obstructed was a "public" highway, and failed to allege other facts showing that such was its character, that while that expression was a "mere conclusion of the pleader and would doubtless be subject to demurrer," yet the bill was "sufficient to withstand the attack made by the motion to dismiss for want of equity," as "it is an amendable defect." Jones et al. v Bright, 140 Ala. 268, 271, 37 So. 79.

While the mere use of a way by the public for a period less than 20 years would not create the presumption of a dedication without some act, clear and unequivocal, amounting to an explicit manifestation of an intention to dedicate it to the public, yet, if a way over reclaimed lands is left open for use by the public, and is used by the public as a highway, this may constitute the beginning of a prescriptive right of way, and, if continued without interruption for 20 years, the presumption is raised of a dedication or grant to the public. Hoole & Paulin v. Attorney General, 22 Ala. 190, 196; Rosser v. Bunn & Timberlake, 66 Ala. 89, 95; Steele v. Sullivan, 70 Ala. 589, 594; N. O. & S. R. R., etc.,...