Merchant v. Markham

• Decision Date: 12 January 1911
• Citation: 54 So. 236,170 Ala. 278
• Parties: MERCHANT ET AL. v. MARKHAM.
• Court: Alabama Supreme Court

54 So. 236

170 Ala. 278

MERCHANT ET AL. v. MARKHAM.

Supreme Court of Alabama

January 12, 1911

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

Suit by C. L. Merchant and others against R. L. Markham. From a judgment for defendant, plaintiffs appeal. Affirmed.

Wilson Kelley and Thetford & Mackenzie, for appellants.

Walter Nesmith, for appellee.

SIMPSON J.

This is a bill filed by the appellants against the appellee, to remove obstructions across a road claimed to be a highway and to enjoin the respondent from obstructing the same. The principal point of controversy is whether or not the road in question is a public road. It has never been taken charge of by the county authorities, or worked by the forces under the overseer of roads. On the contrary, it is in evidence that at one time an application was made to the commissioners' court to open it as a public road, and the same was refused.

The evidence tends to show that, for 20 years or more, persons living in that neighborhood were in the habit of passing over said road; that slight changes were made in it by persons owning lands along it. It is not shown by the evidence how long the lands contiguous to the road were open wood lands nor how long lands along it have been cultivated. There is no proof of any distinct claim by those who have traveled over the road, of a right adverse to the owner of the land, but the evidence is consistent with a permissive use. It is in evidence that 10, 12, or 14 years before this suit the complainant built a fence across another part of this same road, but had a gate through which persons could pass. While the mere fact of an intrusion on a public road by one party would not be any excuse for an obstruction erected by another, yet this is a circumstance proper to be considered in determining whether or not the road was considered a public road, for even though there was a gate provided yet such an erection would be an obstruction across a public road. It is shown that said fence and gate remained across said road, until a no-fence law was enacted about 10 years before the institution of this suit. It is shown that the defendant erected a fence across the road above three years ago, and afterwards, on application of one of the neighbors, agreed that a gate might be placed so that the neighbors could pass through. He also built a barn across the road, but travelers could pass either around the barn, or through its hallway.

The doctrine of prescription applies to public roads, but when a public road is sought to be declared, by prescription, the burden is on the complainant to show, not only the continuous user for 20 years, but that the road was used as a matter of right, and not merely by permission of the landowners. Indeed, when there are certain statutory requirements for establishing public roads, and when the overseers of roads may be required to work all public roads, it would...