Keener et al. v. Brice

• Court: Alabama Supreme Court
• Writing for the Court: LIVINGSTON
• Citation: Keener et al. v. Brice, 43 So.2d 8, 253 Ala. 95 (Ala. 1949)
• Decision Date: 25 November 1949
• Docket Number: 7 Div. 976
• Parties: KEENER et al. v. BRICE.

Page 8

43 So.2d 8

253 Ala. 95

KEENER et al. v. BRICE.

7 Div. 976.

Supreme Court of Alabama.

Nov. 25, 1949.

Knox, Liles, Jones & Woolf, of Anniston, for appellants.

Ross Blackmon, Anniston, and William C. Irby, Jr., Jacksonville, for appellee.

LIVINGSTON, Justice.

The original bill of complaint in this cause was filed by Mrs. W. R. Brice against Mrs. Buna C. Keener and Mary Otelia Keener, seeking an injunction restraining respondents from closing or obstructing an alleged public alley. The case turns on whether or not a strip of land twelve feet wide and ninety feet long is a public alley in the city of Anniston, Alabama. A map or plat of the alleged alleyway, not drawn to scale, is here inserted for a better understanding of the opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The fourth paragraph of the original bill is as follows: 'Complainant avers that heretofore, to wit, on the 25th day of March, 1913, a public alley was established and created running East and West between the East end of complainant's property and that now owned by Miss Ruth Neeley, said Neeley lot lying next East of the respondents' lot and next south of the south line of the alley involved in this suit, said alley being of the approximate width of twelve feet and beginning immediately to the rear of the respondents' said lot. Complainant avers that said alley is a public alley and constitutes as such a part of the highway system of the said City of Anniston. She avers that the status of this alley has continuously existed for a long period of time; to wit, approximately 34 years, next preceeding the filing of this bill of complaint.'

By amendment, the complainant alleged that 'she has been in the open, notorious, continuous, and adverse use of said alleyway for a period of ten and twenty years respectively next preceding the filing of her bill of complaint in this cause, asserting and claiming the bona fide right to make use of said alleyway independent of any objection on the part of any person or persons asserting title to said alleyway to her exclusion. She further avers that her right to use said alley as above set forth has never been contested or disputed by any of her coterminous owners except the respondent, and that said respondent and her predecessors in title never made any objection to her right to use said alley until more than twenty years after her continuous use of same as herein above set forth.'

Neither the bill as originally filed nor the bill as amended was tested by demurrer.

Respondents answered and, in substance, claimed ownership of the strip of land in question; denied that it was a public alley; made their answer a cross-bill and prayed that the court decree title to said strip in respondents, and that complainant and cross-respondent be enjoined from entering and trespassing upon the property of cross-complainants.

The trial court heard the evidence ore tenus and entered a decree to the effect that the strip of land involved had been used by the general public as an alleyway for more than twenty years prior to the filing...