Harbison v. Campbell
| Decision Date | 30 May 1912 |
| Citation | 178 Ala. 243,59 So. 207 |
| Parties | HARBISON v. CAMPBELL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.
Bill by J. H. Harbison against N. J. Campbell. From a decree dissolving an injunction and sustaining a demurrer to the bill, complainant appeals. Reversed and rendered.
F. E St. John, of Cullman, for appellant.
J. B Brown, of Cullman, for appellee.
The bill in this cause is filed by the appellant, seeking to enjoin the obstruction of a public road. After alleging complainant's ownership of lands, the third section of the bill alleges that on February 18, 1908, the court of county commissioners of Cullman county made an order establishing the public road in question, describing it, attaching a copy of the order as "Exhibit A," and alleges that After alleging that said road runs through the lands of complainant and defendant, the bill states that "the said road is the only means or way of ingress or egress to and from the lands of complainant to and from said Cullman and Jasper road; that complainant lives and resides on or near the said Cullman and Jasper road about three miles west from the said described lands on other lands owned by the complainant, and, in order to get to the said above-described lands of complainant from complainant's home, it is necessary for complainant to travel said public road across the lands of the defendant from the Cullman and Jasper road; there being no other road leading from complainant's home to his said lands." It is then alleged "that some time during the month of February, 1911, the said defendant obstructed and closed up said public road where the same runs across his said lands, and has sowed same in oats, and has given the complainant notice not to trespass upon or enter upon or travel the same, and threatens to prosecute complainant for so doing, and, by reason of the defendant closing up said road and refusing to permit the complainant to travel the same, complainant is prevented from cultivating his said lands, or in any way enjoying the use and profits of the same," going on to give details of his preparation to make crops, etc.
The exhibit contains the order of the commissioners' court, reciting that "Robert Campbell and others heretofore appointed by an order of this court to view and mark out" said road have reported in conformity with law, recommending that the road be opened, reciting, also, the 30 days' notice of the application, according to the statute, also that "proper notice was served and returned by the sheriff to the owner of each tract of land over which the road has been worked," proceeds to order the road opened up, and appoints J. B. W. as overseer of said road. A temporary writ of injunction was issued, and was afterwards dissolved on affidavits and the coming in of the answer, and the court sustained the demurrer to the bill. The assignments of error relate to the sustaining of the demurrer to the bill and dissolving the injunction.
The answer denies that the road in question ever became a legally established road, admits that there were proceedings looking to that end in the commissioners' court, and makes as an exhibit copies of all proceedings, alleging that at the time of said proceedings the land now owned by respondent was owned by one George Harbison, that said road was never opened or cut across the said lands, has never been used, traveled, or maintained as a public road, that at the time of the respondent's purchase there was no visible evidence of such a road. It also claims that the proceedings in the commissioners' court are void, because, first, the viewers failed to assess any damages in favor of any landowners except one (William Elkins); second, after the report of the viewers, no order was made appointing a day to hear objections; third, no notice was served on any landowner except Elkins; and, fourth, no compensation was made to George Harbison. Said answer denies that there is any such public road across his lands, but states that he has a private road, located differently, which he permits complainant to use. It denies that respondent ever obstructed any such public road, or warned the complainant not to travel such road, but the entire answer shows that these statements are made on the theory that there is no such road, and that he was simply warning complainant not to trespass on his crops, states that his private road is just as convenient to complainant "as the route which he persists in taking." It is evident that the answer does not, in terms, deny the facts alleged in the complaint, but is carefully worded so as to present the legal proposition whether there is a legally established road at the place alleged in the complaint, and whether, if there is such a road, it has been obstructed, within the meaning of the law.
The proceedings of the commissioners' court (made an exhibit to the answer) show (1) a petition in writing by Robert Campbell for the establishment of the road; (2) said petition and the order of the court show that the road is in Cullman county; (3) the court appointed the viewers according to law. The viewers were sworn according to law. The viewers made their report, and the court made the usual order for notice to the landowners of the amount of compensation. The report, etc., had at the end a form of a relinquishment of claim of compensation to be signed by the landowners, but did not seem to be signed by any one but Elkins. Then follows the order of the court, made "Exhibit A" to the bill.
The complainant introduced a number of affidavits, to the effect that the landholders along the road had released their claim for damages on account of the road's taking a part of their lands; that the road had been regularly opened, and had been kept up by the road overseer and road hands (except a stretch of 2 1/2 or 3 miles, according to some of the witnesses, which had not been worked), but had been continually traveled by the public, and that the defendant had planted and was raising a crop of oats over a portion of the road. One of the affidavits is signed by G. W. Harbison who owned the lands now owned by the defendant, when the proceedings were had to open up the road, and he states that said road was opened up to the public in 1908, and was continually used by the public as a public road until the spring of 1911 when defendant obstructed it, by having it plowed up and sowed in oats, that witness signed the petition for the road, and gave the right of way through the land now...
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City of Birmingham v. Hood-McPherson Realty Co.
...or less commodious, is a nuisance. State of Alabama v. Mayor and Aldermen of Mobile, 5 Port. 279, 30 Am.Dec. 564; Harbison v. Campbell, 178 Ala. 243, 59 So. 207; United States v. Lockhart (D.C.) 33 F. (2d) 600; Costello v. State, 108 Ala. 45, 52, 18 So. 820, 35 L.R.A. 303. "Anything that wo......
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Blair v. Fullmer
...Comm'n, 474 So.2d 1116 (Ala.1985); Floyd v. Industrial Dev. Bd. of the City of Dothan, 442 So.2d 927 (Ala.1983); and Harbison v. Campbell, 178 Ala. 243, 59 So. 207 (1912). None of those cases, however, involved the question of the effect of nonuse of a road or other land dedicated to the pu......
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Johnson v. State
... ... Non-use of a public road short of the term of prescription does not operate as a discontinuance of said road. Harbison v. Campbell, 178 Ala ... 243, 59 So. 207; Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95f Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 ... ...
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Purvis v. Busey, 1 Div. 548
...are of the opinion that the respondent failed to meet the burden which was upon him to show an abandonment of Road B. In Harbison v. Campbell, 178 Ala. 243, 59 So. 207, it was said that nonuser short of the time of prescription does not operate as a discontinuance of a public road. We have ......