Jones v. Bright

• Decision Date: 10 May 1904
• Citation: 37 So. 79,140 Ala. 268
• Parties: JONES ET AL. v. BRIGHT.
• Court: Alabama Supreme Court

37 So. 79

140 Ala. 268

JONES ET AL. v. BRIGHT.

Supreme Court of Alabama

May 10, 1904

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

Bill by W. L. Jones and others against J. V. Bright. Decree for defendant, and complainants appeal. Reversed.

The bill in this case was filed to have the court compel the defendant to remove obstructions to a public road and to restrain the defendant from interfering with complainants' use of said road as a highway, and from closing up or obstructing the same in any way. It was averred in the bill that each of the complainants resided and owned farms along the north end of said road, which is described in the bill of complaint. As to the road being a public road the averment of the bill was as follows: "That the said road hereinbefore described * * * is a public highway, and that it had been used by the public as a highway for a period of over twenty years, to wit, 35 or 40 years; and that the public has had the quiet and uninterrupted use and control of said highway for said period of time, and that said road has been continuously recognized as a public highway for said period of time." The other facts averred in the bill as constituting grounds for relief are sufficiently stated in the opinion.

F. E St. John, for appellants.

J. E Brown, for appellee.

TYSON J.

The original bill in this cause was held by the chancellor, upon submission upon demurrer and motion to dismiss for want of equity, to be defective, but to contain equity, with leave to complainants to amend. The amendment was made in the form of a substituted bill, which is a permissible practice frequently indulged in. To this substituted bill a demurrer, consisting of many assignments, was interposed, and also a motion to dismiss for want of equity. The cause was then submitted for decree in vacation upon the demurrer and motion, resulting in a decree dismissing the amended bill for want of equity. From that decree this appeal is prosecuted.

The purpose of the bill is to compel the respondent to remove the obstruction placed by him across a public highway which prevented its use by the complainants, and to restrain him from further obstructing their passage along and over it. The bill alleges that the road which is obstructed and closed by the respondent is a public road--which confessedly is a mere conclusion of the pleader, and would doubtless be subject to demurrer (Walker v. Allen, 72 Ala. 456); the other facts averred being wholly insufficient to show that such is its character, the presumption being that its use was permissive. In other words, in order to establish a highway by prescription it must appear that the use by the public has been adverse to the owner under claim of right, and not by his permission, for a period of 20 years or more. The mere use of land for the purpose of a road carries with it no presumption of adverse claim or claim of right to so use it. Whaley v. Wilson, 120 Ala. 502, 24 So. 855; Trump v. McDonnell, 120 Ala. 200, 204, 24 So. 353; Elliott on Roads and Streets (2d Ed.) § 175. But the averment that it is a public road is sufficient to withstand the attack made by the motion to dismiss for want of equity. It is an amendable defect, which may be cured by an amendment of the facts from which the conclusion is drawn or upon which it is based.

A motion to dismiss is not the equivalent of a demurrer, and does not reach amendable defects. 3 Mayfield's Dig. §§ 2914, 2917, p. 330.

This brings us to a consideration of the only other point necessary to be considered on this appeal. It is whether the complainants show any special or peculiar damage sustained by them different from that suffered by the general public. If they do, then under our decisions the chancery court will assume jurisdiction to abate the nuisance sought to be abated by this bill by preventing its continuance by the aid of an injunction. "This will be done either on the ground of the irreparable nature of the injury or to...