Coleman v. Butt

• Decision Date: 14 May 1901
• Citation: 130 Ala. 266,30 So. 364
• Parties: COLEMAN v. BUTT.
• Court: Alabama Supreme Court

30 So. 364

130 Ala. 266

COLEMAN v. BUTT.

Supreme Court of Alabama

May 14, 1901

Appeal from city court of Talladega; G. K. Miller, Judge.

Bill by F. A. Butt against T. H. Coleman. Judgment for plaintiff, and defendant appeals. Affirmed.

The complainant filed his bill seeking to have a right of way established over certain lands, which right of way he claimed by express grant as a purchaser from the original grantee and over lands which the respondent below acquired by purchase from the original grantor, and seeking to have the right of way defined and opened, and the respondent enjoined from further disturbance of the same, and also asking for damages sustained by the complainant from the respondent's wrongful denial and disturbance of this right of way. The facts as disclosed by the bill were as follows: The instrument under which the complainant claimed his right of way was an agreement or deed of division made in 1862 between H. W. Coleman, father of respondent, and F. Austin Butt, father of complainant. This agreement or deed divided between these parties lands jointly owned by them the lands falling to Butt being cut off from a certain creek and road by the land falling to Coleman, and as a part of the consideration of the deed it was agreed "that the said Coleman is to allow the said Butt and his assigns a free passage to Talasahatchy creek, on the eastern boundary of said tract of land." The land acquired by Coleman by this division afterwards became the property of the respondent, Coleman, and that acquired by Butt became the property of the complainant, Butt, the road having been opened as provided along the eastern boundary of this land which road was afterwards, after being used for many years closed up by the respondent, Coleman, and its use refused to the complainant. The complainant sues to have the road opened under the direction of the court, and asks for such damages as he may have sustained by the denial of his right of way. The respondent moved the court to dismiss the bill for the want of equity. The respondent also filed 31 grounds of demurrer to the bill. These demurrers set up in different ways three imperfections in the bill, which may be concisely stated as follows: (1) That in the deed or agreement of division which is attached to the bill of complaint as an exhibit there were no words of grant and sale, and therefore no right of way passed between the parties by direct grant (2) that the bill shows upon its face that it is barred by the statute of limitations of 10 and 20 years; (3) that if any right was ever acquired it appears from the face of the bill that it has been abandoned by nonuser. On the submission of the cause upon the motion to dismiss and the demurrers the court overruled the motion to dismiss for the want of equity, and sustained the grounds of demurrer setting up the statute of limitations, and overruled the other grounds of demurrer. From this decree the respondent appeals, and assigns...