Jordan v. McLeod

Decision Date28 January 1930
Docket Number4 Div. 449.
Citation220 Ala. 672,127 So. 160
PartiesJORDAN v. MCLEOD.
CourtAlabama Supreme Court

Rehearing Denied April 3, 1930.

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Bill for injunction by Herbert McLeod against Curry C. Jordan, and cross-bill by respondent. From a decree dismissing both the original bill and the cross-bill, respondent appeals, and complainant cross-assigns errors.

Reversed and remanded.

ANDERSON C.J., and THOMAS, J., dissenting.

A. G Seay, of Troy, for appellant.

Wilkerson & Brannen, of Troy, for appellee.

THOMAS J.

There is cross-assignment of errors by the original complainant and respondent filing cross-bill. Relief was denied both parties and their respective pleadings dismissed.

Certain principles urged are well understood and given statement in the decisions; for example, that the uninterrupted use by the general public of a roadway for twenty years raises the presumption of a dedication by the original owners and acceptance by the public. City of Birmingham v Graham, 202 Ala. 202, 204, 79 So. 574; Thrasher v Burr et al., 202 Ala. 307, 80 So. 372; Fuller v. Fair, 202 Ala. 430, 80 So. 814; Stollenwerck et al. v. Greil et al., 205 Ala. 217, 87 So. 338; Williams v. Oates, 212 Ala. 396, 102 So. 712; Harvey v. Warren, 212 Ala. 415, 102 So. 899; Ft. Payne Co. v. City of Fort Payne, 216 Ala. 679, 114 So. 63; Stillwell v. McCollister, 214 Ala. 141, 107 So. 78; Thetford v. Town of Cloverdale, 217 Ala. 241, 115 So. 165. It is further established by the decisions that adjacent landowners agreeing upon a line between them as their dividing line, and occupying thereto as the dividing line, or when one of them places a fence between them as the dividing line, and claims and holds thereto, with the knowledge of such claim by the other and adjacent owner, possession thereto and thereunder is adverse as to such other party. Copeland v. Warren, 214 Ala. 150, 107 So. 94; Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837; Aiken v. McMillan, 213 Ala. 494, 106 So. 150; Smith v. Bachus et al., 195 Ala. 8, 70 So. 261; Shepherd v. Scott's Chapel, 216 Ala. 195, 112 So. 905.

When obstructions and encroachments are upon or in a public highway, and renders that highway less commodious, it is an unwarranted interference with its use, and is a public nuisance that may be abated by the authorities, or generally by some interested and injured citizen or property owner (not estopped or denied by principles of equity) for the use and benefit of himself and that of the general public. City of Troy v. Watkins, 201 Ala. 274, 78 So. 50; First National Bank of Montgomery v. Tyson, 144 Ala. 457, 39 So. 560; Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745, 43 L. R. A. 376. The superior right of the municipality or the sovereign for the general public and that of the citizen or adjacent property owner were clearly stated in Thetford v. Town of Cloverdale, supra. The superior right or use by the public of its thoroughfares is unaffected by the statute of limitations, equitable estoppel, or prescription. That the right of an individual to maintain a bill in his own right may, in a proper case, be subject to such defenses, and is dependent on the peculiar facts, is the announcement of the courts.

And applying the rule as to coming into equity with clean hands, the right was denied (to the alleged claimant of exclusive right of ferriage across the river) to restrain another from operating a ferry across the river between the same places, where plaintiff himself was a wrongdoer in first invading the rights of defendant. Power v. Athens, 99 N.Y. 592, 2 N.E. 609. See Pittsburgh, etc., Co. v. Crothersville, 159 Ind. 330, 64 N.E. 914; Goldman v. Reyburn, 18 Pa. Dist. R. 883, and Headley v. Chester, 22 Pa. Dist. R. 900, cited in 32 C.J. pp. 67, 68. "No tort-feasor can engage a chancellor's attention," etc. can engage a chancellor's attention," etc. Hartman v. Pennsylvania Range Boiler Co., 24 Pa. Co. Ct. R. 324, 326.

It is further declared as to the right of injunction (32 C.J. p. 67, § 50):

"Injunction will be denied even though complainant shows that he has a right and would otherwise be entitled to the remedy in case it appears that he himself acted dishonestly, fraudulently or illegally in respect to the matter in which redress is sought, or where he has encouraged, invited or contributed to the injury sought to be enjoined. However, the general principle that he who comes into equity must come with clean hands applies only to plaintiff's conduct in relation to the very matter in litigation."

It has been held by this court that, if complainant so acted as to raise an estoppel against him, he will not be granted an injunction to prevent the encroachment upon the public highway by the building sought to be removed by injunction. Adams v. Birmingham Realty Co., 154 Ala. 457, 45 So. 891; 13 R. C. L. p. 244, §§ 201, 204.

In the Adams Case, supra, the two buildings of the respective parties affected by the obstruction sought to be abated were upon the same public highway, and were "adjoining each other"; and a quasi estoppel by acquiescence of complainant was enforced, and complainant was denied the right to abate the encroachment upon that public highway at the time and place immediately and mutually affecting him and respondent. It is hardly necessary to observe that, if the injury on the public highway sought to be abated had no immediate and necessary relation to the equity or right which complainant sought to enforce against the defendant, there could be no estoppel or quasi estoppel. As applied to the case before us, the encroachments set up in the respective pleadings were immediate and effective, and of necessary relation as to time and place to the adjacent landowners on both sides of that alley, and affected the rights of both parties to the unobstructed use thereof throughout the length and breadth of their adjacent properties abutting thereon. The estoppel is in their respective encroachments on the subject-matter as to time and place as to bar the action of complainant under the original bill and that of respondent under his cross-bill.

In Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107, 109, it is declared from Judge Stone's opinion:

"In McBryde v. Sayre, 86 Ala. 458, 462, 5 So. 791, 792, 3 L. R. A. 861, the relief sought by way of injunction, to quote the opinion, partook 'largely of the nature of a bill for specific performance,' the court announcing the familiar rule that relative conveniences or inconveniences will be weighed, expressly restricting the exercise of the discretion in mind to the benefit of 'an unoffending party.' Certainly, the creator of a public nuisance cannot claim the consideration accorded, in some circumstances, to 'an unoffending party."'

And the text of Corpus Juris rested on the Adams Case, 154 Ala. 457, 45 So. 891, and the authorities from Alaska, Colorado, Indiana, Iowa, Michigan, Pennsylvania, England, Manitoba, and Ontario is as follows (32 C.J. p. 69, § 52):

"If complainant has himself acted in such a way as to raise an estoppel against him, he will not be granted an injunction to prevent the act in question."

And in 29 C.J. 627-629, § 383, on the subject of "Highways," it is said:

"Where a road is shown to be an existing public highway, a private individual is entitled to an injunction against encroachments or obstructions thereon when, and only when, he has sustained special damage etc., South, etc., Alabama R. Co. v. Schaufler, 189 Ala. 58, 66 So. 502; Alabama Great Southern R. Co. v. Barclay, 178 Ala. 124, 59 So. 169; Walls v. Smith, 167 Ala. 138, 52 So. 320, 140 Am. St. Rep. 24; Jones v. Barker, 163 Ala. 632, 50 So. 890; Jones v. Bright, 140 Ala. 268, 37 So. 79; Cabbell v. Williams, 127 Ala. 320, 28 So. 405; Whaley v. Wilson, 120 Ala. 502, 24 So. 855; Whaley v. Wilson 112 Ala. 627, 20 So. 922." *** "In addition to proving special damage plaintiff must show that he has no adequate remedy at law, and that the injunction is necessary to preserve his rights from irreparable injury in a plain case, having due regard to the public interest, and where plaintiff is not himself estopped, and where he himself is an obstructor, or has delayed applying for relief, under circumstances charging him with laches." (Italics supplied.)

In 2 Elliott's Roads and Streets, § 897, p. 1177, it is said of the right of injunction by an individual that "it may be lost by such laches as will work an estoppel."

It was held in Louisville & N. R. v. Mauter, 199 Ala. 387, 74 So. 932; South & North Alabama R. Co. v. Mauter, 202 Ala. 326, 80 So. 408, and Alabama G. S. R. Co. v. Barclay, 178 Ala. 124, 59 So. 169, that a mere delay or silent acquiescence (without more) was not sufficient to raise an estoppel against abatement by an individual of an unlawful obstruction on a public highway; though, in a bill in equity to abate a public nuisance as affecting complainant's right of damages, held that the statute of limitations applied. Sudduth v. Central of Georgia R. Co., 201 Ala. 56, 77 So. 350, Batterton v. Birmingham, 218 Ala. 489, 119 So. 13.

That is to say, the maxim that "he who seeks equity must do equity" has been applied with force and effect to injunctions, Irwin v. Shoemaker et al., 204 Ala. 89 85 So. 269; Coburn et al. v. Coke et al., 193 Ala. 364, 69 So. 574, as where there is no offer to "return the money received under the contract"; Keener et al. v. Moslander, 171 Ala. 533, 54 So. 881, where one has first breached the contract right; Montgomery v. Sayre, 65 Ala. 564, where there were legal taxes due, and there was no offer to pay the same, though seeking to abate illegal taxes included, State Railroad Tax Cases,...

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4 cases
  • City of Birmingham v. Hood-McPherson Realty Co., 6 Div. 43
    • United States
    • Supreme Court of Alabama
    • January 14, 1937
    ...50; First National Bank of Montgomery v. Tyson, 144 Ala. 457, 39 So. 560; Douglass v. City Council of Montgomery, supra; Jordan v. McLeod, 220 Ala. 672, 127 So. 160; McIntosh et al. v. Moody et al., 228 Ala. 165, So. 182. The decree of the circuit court is therefore affirmed. Affirmed. ANDE......
  • Monsanto Chemical Co. v. Fincher
    • United States
    • Supreme Court of Alabama
    • September 14, 1961
    ...so continuous in nature that the legal remedy for damages would be inadequate. Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Jordan v. McLeod, 220 Ala. 672, 127 So. 160; City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; State v. Ellis, 201 Ala. 295, 296, 78 So. 71, L.R.A.191......
  • Hanna v. Harman, 3 Div. 130
    • United States
    • Supreme Court of Alabama
    • June 6, 1935
    ...... remedy for damages would be inadequate. Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Jordan v. McLeod, 220 Ala. 672, 127 So. 160; City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020;. State v. Ellis, 201 Ala. 295, 296, 78 ......
  • Buffalo v. Arkansas State Highway Commission, 5--5206
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    • Supreme Court of Arkansas
    • March 30, 1970
    ...manifold sovereign interests and concerns.' State ex rel. Veale v. Paul, 113 Kan. 412, 214 P. 425.' In the Alabama case of Jordan v. McLeod, 220 Ala. 672, 127 So. 160, two abutting property owners attempted to enjoin the other from encroaching on a public alley right-of-way forming part of ......

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