Jones v. Barker

• Decision Date: 09 November 1909
• Parties: JONES v. BARKER.
• Court: Alabama Supreme Court

50 So. 890

163 Ala. 632

JONES v. BARKER.

Supreme Court of Alabama

November 9, 1909

Appeal from City Court of Selma; J. W. Mabry, Judge.

Suit by Joan Ferguson Barker against Edwin Carlisle Jones to remove obstructions across a roadway. From a decree overruling demurrers to the bill, defendant appeals. Affirmed.

The chancellor's decree is as follows: "Complainant predicates his right to the use of the roads in question on three distinct grounds: First, by prescription; second, by reason of its having been dedicated to the public; and third, as a way of necessity. An easement by prescription may be acquired by an individual or by the public, and so may a highway be established by a prescription; but the user on which the title and right is predicated must have been adverse to the owner of the soil, not merely permissive, and must have been continuous and uninterrupted for a period of 20 years. And the mere user of land for road purposes involving as it were ordinarily no injury to the owner carries with it no presumption of adverse claim or claim of right to use the road. And in the absence of facts and circumstances to the contrary, such user will be presumed to have been permissive merely. [ [Authorities cited here.] The bill avers that the road is a public highway; that it was known for over 40 years as Long or Race street, and among other things avers that it has been used by the public as and for a public road and highway for 30 years or more; that such use has been by the public exclusive, and was at all times open, notorious, adverse, and visible to all persons whatsoever; and that such use was by the public uninterrupted and continued, until obstructed by respondent as averred. The bill seeks to show that there has been a dedication of the road by reason of the land being platted into lots, and lots sold in reference to the road as thereon laid off; but its allegations in this behalf are insufficient. Its averments in substance are that the land over 40 years ago was platted and laid off into lots, and so shown by old maps of the town of Selma, and bounded by said Long or Race street, and lots were sold off and conveyances and deeds made, referring to and bounding the same by said streets; but there is no averment that the then owner platted the land, or made the maps, or sold the lots, or any of them [citing authorities]. I think the other facts averred in the bill, going to show a former dedication and its acceptance by the public, are sufficient. A dedication may be expressed, or it may be implied from conduct or acts; it may be created by a single act, or by a series of acts; it may be created by a writing or orally. The bill avers that the Ferguson road has been continuously used by the public for about 40 years; that this road in the greater part of section 29 was really a street, and was known for over 40 years as Long or Race street, and is so marked and designated on a number of maps made...