Kirkland v. Kirkland, 4 Div. 212

• Decision Date: 30 March 1967
• Docket Number: 4 Div. 212
• Citation: 198 So.2d 771,281 Ala. 42
• Parties: Dorsey KIRKLAND v. Robert KIRKLAND.
• Court: Alabama Supreme Court

Page 771

198 So.2d 771

281 Ala. 42

Dorsey KIRKLAND v. Robert KIRKLAND.

4 Div. 212.

Supreme Court of Alabama.

March 30, 1967.

Rehearing Denied May 5, 1967.

J. Hubert Farmer, Dothan, for appellant.

Halstead & Whiddon, Headland, for appellee.

COLEMAN, Justice:

The parties to this suit are three brothers. Dorsey Kirkland filed his bill of complaint against his brothers, Robert Kirkland and Herbert Kirkland. We will sometimes refer to Dorsey Kirkland as complainant. In the original bill filed April 17, 1963, Robert and Herbert are both named as respondents although complainant sought an injunction against Robert only and sought no relief against Herbert.

Complainant alleged that Robert had placed a gate across a certain private road or way, which complainant had previously used in going to and from his 130-acre farm, and that Robert had locked the gate. The relief sought is to enjoin Robert from maintaining the gate across the way and from preventing or interfering with complainant's use of the way.

The private way lies in part on or along the boundary line which divides a tract of land owned by complainant from an adjoining tract of land owned by Robert and Herbert as tenants in common. The dispute, as we understand the record, is over complainant's right to use this part of the private way which lies one half on complainant's land and one half on land owned jointly by Robert and Herbert. Part of the way lies wholly on complainant's land, but we do not understand that Robert has interfered with complainant's use of that part of the way which lies wholly on his own land. Complainant charges that he is being prevented from using that part of the way which lies on the common boundary.

By amendments to the bill, complainant alleges that Herbert recognizes complainant's right to use the way, that Herbert objects to and is opposing Robert's action in placing the gate across the way, and that Herbert is agreeable to the injunction and to any and all relief prayed for by complainant. Herbert filed an answer wherein he states that the matters averred in the bill are true and correct.

The court sustained Robert's demurrers to the amended bills.

Complainant then filed a substitute bill wherein he makes the following averments:

Complainant owns and is in possession of the described 130-acre tract, the northeast east corner of which lies 340 yards southwest of a paved highway. There is a private road or way twelve feet wide running from the highway to the northeast corner of complainant's land, which road is on land belonging to Robert and Herbert. As we understand the bill, Robert has not interfered with complainant's use of this 340 yards of road. Said road then runs west 1316.92 feet to a gate. This 1316.92 feet of road lies on the common boundary with the south half on complainant's land and the north half on land belonging jointly to Robert and Herbert. The private road then runs south 685.89 feet on land belonging to complainant but this 685.89 feet of road is bounded on the west by land jointly owned by Robert and Herbert. The road then runs south 800 feet over land wholly owned by complainant, and then continues south through land owned by Robert and Herbert.

In January, 1963, Robert placed the gate across the road at the west end of the call and distance alleged to be 1316.92 feet, and has refused to let complainant have passage through the gate.

Complainant has thereby been deprived of the use of the private road in getting to 75% Of his land, and has had to go through land of his being planted in crops. Unless he is given access to the private road, he will have to go and come through his land with tractors, wagons, etc., over and through crops he has planted and will thereafter plant.

Herbert, as aforesaid, recognizes complainant's right to use the road and is agreeable to the relief which complainant seeks.

In February, 1948, the three brothers, together with their father and mother, jointly purchased, from A. L. Hasty, the land which is now owned by complainant together with the land now owned by Robert and Herbert; the entire acreage so purchased being 363 acres. In November, 1945, the brothers and parents purchased 175 acres from the said A. L. Hasty; the total purchased on the two occasions being 538 acres.

On each of the two occasions, only a small part of the purchase price was paid; and, on each occasion, the purchasers agreed among themselves that they should grow crops on the land and pay the balance of the price; that the lands should be partitioned between complainant on one hand and Robert and Herbert jointly on the other, with the father and mother to have a life estate in all the land. The agreement to partition was not in writing but was wholly in parol.

In February, 1948, the three brothers agreed that the lands should be so partitioned that complainant would receive as his part the 130 acres described in the bill of complaint. So far as complainant's land adjoined the lands of Robert and Herbert, a boundary line was agreed to and thereafter complainant went into possession of his 130 acres and has since remained in possession of the same, subject to the possessory rights of his father and mother. Likewise Robert and Herbert went into possession of the remaining portion of the land purchased, all subject to the possessory rights of the father and mother.

On or about March 18, 1958, Robert, Herbert, and the parents executed and delivered their deed to complainant conveying to him their interest in and to his 130 acres. On said date, complainant and his wife conveyed to Robert, Herbert, and the parents all complainant's interest in the remaining portion of the lands. On February 21, 1959, Robert and Herbert, by deed, conveyed to the parents 3.3 acres of the said remaining lands, and on March 28, 1958, the parents conveyed their interest in the said remaining lands, less said 3.3 acres, to Robert and Herbert. All said conveyances were made in execution of the parol agreement made when the lands were purchased from Hasty.

At the time the lands were purchased, a family agreement was made by the three brothers to the effect that said private road was to be used by complainant and Robert and Herbert for the purpose of going from said paved highway over and along the lands of both complainant and Robert and Herbert as above set out. Complainant's land was to be used for growing crops and the adjoining land of Robert and Herbert was also likewise to be used for farming purposes.

At the time Robert and Herbert conveyed their undivided interest to complainant, and at the time he conveyed his undivided interest to them, 'it was understood and agreed that said road or private way would continue to be used' by the three brothers thereafter as the same had been used by them from 1947 until March, 1958.

The private road located on the land of Robert and Herbert for a distance of 340 yards from the paved highway to complainant's land had been used as a private road thirty years or more before the making of the family agreement.

Complainant avers that the mutual use of the private road as above described should be considered a separate and exclusive use of said road by complainant on one hand and Robert and Herbert on the other. At the time the deeds of partition were made, the road was being mutually used by the brothers. Said deeds did not mention said private road, and therefore, avers complainant, there was and is an implied grant between complainant and respondents as to said road and respondents are estopped to deny such implied grant to complainant, as he is also estopped to deny an implied grant to respondents. Complainant avers that by mutual and reciprocal use of the road for 17 years, an easement by estoppel exists.

After Robert's demurrer to the substitute bill had been sustained, Herbert, with consent of Robert, filed an amendment which made Herbert a complainant along with the original complainant, Dorsey, and left Robert as the sole respondent.

Herbert adopted the substitute bill which Dorsey had filed and Dorsey and Herbert together amended the substitute bill by adding averments as follows:

During the time since Robert locked the gate and prevented Dorsey from using the private boundary road, Herbert also has been denied use of the road; that during all the time since the original bill was filed, Robert has continued to use the private road, including the first part that lies on land owned by Robert and Herbert jointly, the second part which lies one-half on Dorsey's land and one-half on the jointly owned lands of Robert and Herbert, and also the third part which lies on land wholly owned by Dorsey; wherefore, complainants allege that Robert is estopped to deny to complainants the use of the way as previously used and as agreed upon as aforesaid.

The court sustained Robert's demurrer to the substitute bill as last amended. A motion to dismiss, as provided by amended § 755, Title 7, was made, the bill was dismissed, and complainants appealed.

The complainant, Dorsey, has assigned for error the ruling sustaining Robert's demurrer to the substitute bill as last amended. Herbert did not join in the assignments of error and did not separately assign errors.

We will continue to refer to Dorsey as the complainant. Robert will be referred to as the respondent.

The averments of the bill present an unhappy quarrel between brothers. After fifteen years of labor to acquire 538 acres of land, they now disagree as to their respective rights to use a strip of the land 1316.92 feet long and twelve feet wide, a little more than one-third of an acre. They have appealed to the law and to the law they must look to settle their dispute. The question for decision is whether complainant has an easement in Robert's land so that complainant has the right to use the boundary road.

We will consider the grounds of demurrer which assert that the bill contains no equity and that the facts...