Hamby v. Stepleton, 7 Div. 951.

• Decision Date: 14 June 1930
• Docket Number: 7 Div. 951.
• Citation: 130 So. 76,221 Ala. 536
• Parties: HAMBY v. STEPLETON.
• Court: Alabama Supreme Court

130 So. 76

221 Ala. 536

HAMBY v. STEPLETON.

7 Div. 951.

Supreme Court of Alabama

June 14, 1930

Rehearing Denied Oct. 9, 1930.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill for injunction by John C. Stepleton against James M. T Hamby. From a decree for complainant, respondent appeals.

Affirmed.

Motley & Motley, of Gadsden, for appellant.

C. L Cottle, of Gadsden, for appellee.

ANDERSON C.J.

The last amended or substituted bill of complaint expressly renounces any claim to relief upon the idea of a prescriptive right to the use of the road. Nor does it show a right to the road under an express valid grant as the agreement relied upon was oral and not binding upon the respondent. Hicks v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, 57 L. R. A. 720, 91 Am. St. Rep. 38. The fact, however, that the parties discussed the road and the question of keeping the same open at the time of the purchase of the land by the complainant from the respondent was an evidential fact that the road existed at the time and was regarded in the nature of a necessity for an outlet from the property so purchased.

We think the bill makes out a case for equitable relief as for an implied covenant or right of way of necessity and was not subject to the respondent's demurrer. It sets up a grant from the respondent to the complainant to his land that the land so granted is surrounded, or partially so, by the respondent's land and which with the land sold him formed one body or tract. It also appears from the plat or map, made a part of the bill of complaint, and the correctness of which has not been questioned, that the respondent's land through which the road runs, lies between the land of the complainant and the public road, and that complainant has no way of reaching said public road without going over the road in question or over lands of a stranger.

"It is a universally established rule that where a tract of land is conveyed which is separated from the highway by other lands of the grantor, or which is surrounded by his lands or by his and those of third persons, there arises by implication in favor of the grantee a way of necessity across the premises of the grantor to the highway. The basis of this right is the presumption of a grant arising from the circumstances of the case. Necessity does not of itself create a right of way, but it is evidence of the grantor's intention to convey one, and raises an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied in a given case depends upon the terms of the deed and the facts in that case. Following the general rule above...