Methvin v. Haynes, 7 Div. 34

• Decision Date: 30 March 1950
• Docket Number: 7 Div. 34
• Citation: 254 Ala. 58,46 So.2d 815
• Parties: METHVIN et al. v. HAYNES.
• Court: Alabama Supreme Court

Page 815

46 So.2d 815

254 Ala. 58

METHVIN et al. v. HAYNES.

7 Div. 34.

Supreme Court of Alabama.

March 30, 1950.

Rehearing Denied June 22, 1950.

Ralph D. Porch, of Anniston, for appellants.

Young & Young, of Anniston, for appellee.

BROWN, Justice.

The complainant, as the bill alleges, owns 'the premises known as No. 132 Gray Street in the Town of Oxford, Calhoun County, Alabama, and the respondents own or are reputed to own and are in possession of the premises known as No. 128 Gray Street in the Town of Oxford, Calhoun County, Alabama; that an alley 20 feet in width runs between said lots to a depth of 280 feet, more or less, said alley being more particularly described as follows to wit: 'Commencing at a point on the West side of Gray Street 100 feet North of the Northwest intersection of Gray Street and Graham Street, thence North along the West side of Graham Street 20 feet, thence west of even width 280 feet, more or less.'

The right of complainant to use this alley is the bone of contention in this case. The other matters complained of are incident to this controversy and consist of alleged trespasses, threats, obscene language and other personal acts toward complainant and his family in respect to all of which the bill seeks a mandatory, preliminary and permanent injunction against the defendants Eugenia Toland Methvin and Ethel Toland, compelling them to 'forthwith remove said obstruction to said alleyway on Gray Street and to take down and remove the said fence hereinabove described and to restore complainant's fence to the place from which it was removed by the respondents, their servants, agents and employees and to forever refrain from obstructing the said alley and trespassing upon complainant's premises and interfering with complainant's use of the said alley in any manner whatsoever, to refrain from calling up complainant and the members of his family by telephone or otherwise; to cease and desist from all such conduct as may tend to embarrass and humiliate complainant and the members of his family; to refrain from threatening to assault complainant and the members of his family; and to refrain from committing any act or acts towards the complainant and the members of his family tending to cause a breach of the peace.'

The bill was filed by the appellee on April 11, 1949. Complainant claims an easement on and over said alley established by prescription and continuous use by complainant and his predecessors in title under claim of right for twenty years or more. The residence of complainant is No. 132 on Gray Street, which runs north and south, and the house occupied by the defendants is No. 128 Gray Street. The alley runs immediately north of complainant's property line between the said Nos. 132 and 128.

The pertinent allegations of the bill are: 'That said alleyway for more than 20 years immediately last past has been used by the complainant and his predecessors in title, together with the respondents and their predecessors in title for the general purpose of the right of way as such alleyways are commonly used, among other things to enable trucks, carts and wagons of the sanitary department of the Town of Oxford to remove garbage and trash from the rear of complainant's premises, and along which to carry fuel, groceries and other articles by trucks or vehicles necessary and incident to the use of the dwelling, and for the purpose of reaching the garage on the rear of complainant's lot and for the general convenience of complainant; that until now such use of said alley has been and continues to be necessary to the enjoyment of complainant's house and lot.

'Complainant further respectfully represents that the respondents, their servants, agents and employees have repeatedly trespassed that portion of complainant's lot measuring 10 feet North and South by 132 feet East and West and distant from Gray Street 280 feet, more or less; that respondents, their said agents, servants and employees tore down and destroyed complainant's fence, marking that part of his lot described in this paragraph and have gone upon complainant's said lot and erected a great barrier consisting of many posts measuring some 10 feet in height and many strands of barb wire; that complainant's said fence removed by respondents, their servants, agents and employees, has enclosed a part of respondent's premises hereinabove described for more than 20 years.

'Complainant further respectfully represents that the said 20 foot alley has been continuously used for more than 20 years and without interruption, and said 20 foot alleyway has been used by the complainant and his predecessors in title for the purpose of hauling groceries, fuel and household supplies to reach the garage on the rear of complainant's said lot, and by the sanitary department of the Town of Oxford, Alabama to remove trash and garbage from the rear of complainant's said lot; that said use was not permissive, but that complainant so used said alleyway under claim of right, openly, notoriously, and continuously, together with his predecessors in title, for more than 20 years, immediately last past.

'Complainant avers that during towit: the month of March, 1949, the respondents have obstructed said alleyway by erecting a fence or gate across the mouth of said alley on Gray Street, thereby permanently blocking said alley and denying the use thereof to the complainant and thereby, greatly inconveniencing him in the use of the said premises.'

The bill verified by affidavit as to truth was presented to the Hon. Leslie Longshore, one of the Circuit Judges, on an application for fiat for the issuance of a temporary injunction on the day it was filed and the same was set down for hearing by him on the 15th day of April, 1949. On the 13th of April, Judge Longshore filed an order of recusal accompanied by an order vacating his former order with request that Judge DeBardelaben, his Associate Judge, take cognizance of said order and act thereon as he might see fit.

On May 21, 1949, the respondents filed their answer alleging 'Respondents assert that the premises known as 128 Gray Street in the Town of Oxford, Alabama are owned by the Estate of Merit H. Toland and that they are not owned by Eugenia Toland Methvin and Ethel Toland, Respondents, and that all of the heirs of Merit H. Toland, deceased, are necessary and indispensable parties respondent in the above-styled cause and that this cause should not proceed until all of the heirs of Merit H. Toland are made parties respondent.

'Respondents deny that an alley exists between 128 Gray Street and 132 Gray Street and say that said twenty foot strip alleged to be an alley is a private driveway providing the owner entrance for vehicles into the residence of 128 Gray Street; that said drive ends at the rear of the property known as 128 Gray Street, that it has never been dedicated by the Town of Oxford as an alley nor used as such. Respondents deny that said drive has been used by the complainant and his predecessors in title for ingress and egress to the premises known as 132 Gray Street, now owned by the Complainant, Paul M. Haynes.

'Respondents would further show that because of the alleged claim of the Complainant, Paul M. Haynes, to this said drive in question, Respondents caused to be made a plat of survey by a registered civil engineer in June of 1948, which plat of survey shows clearly that the drive in question lies solely on the premises of 128 Gray Street and not on the property of the Complainant. So far as the Respondents know, Complainant has never had a plat of survey made in the attempt to validate his claim to the said drive. Respondents particularly deny that Complainant has used this driveway under claim of right, openly, notoriously and continuously, together with his predecessors in title for more than twenty years immediately past, and state that there has been on the property of 132 Gray Street a fence erected by the predecessors of title to Paul M. Haynes, which said fence shows that the predecessors of title to Paul M. Haynes clearly did not assert claim of any sort to the said drive in question.

'Respondents assert that they have built a wire fence between 132 and 128 Gray Street for their own protection because of the repeated trespasses of the Complainant and persons living in his home, which said trespasses were intended to threaten, harass, and frighten Respondents and to keep them in a state of fear. Respondents assert that they live at 128 Gray Street alone, and that they are afraid for their safety because of the conduct of Complainant, members of his family, and other residents of 132 Gray Street.

'Respondents further deny using abusive, obscene, violent and threatening language to the Complainant and members of his family and deny threatening the Complainant and members of his family with bodily harm. * * *.'

On motion of the solicitors for defendants with notice to the solicitors for complainants Judge DeBardelaben 'for cause shown by said respondents,' the hearing of said matter was continued from July 20 to August 30, 1949, at 9:00 A.M., 'at which last mentioned appointed time the testimony in this case shall be taken orally before the Court.' Notice was ordered to be given to the solicitors for both parties and a like order was made on motion of complainant's solicitors after notice to their adversaries and for cause shown 'the hearing of said matter was continued from August 30th, 1949, to August 31, 1949, at 9:00 A.M.' On the date last above mentioned the parties examined witnesses, their testimony covering some eighty or more pages of the record. At the conclusion of the examination of witnesses, the following colloquy occurred between Judge DeBardelaben and Mr. Porch, one of the defendant's solicitors:

'The Court: Is that all the documentary evidence and oral evidence in the case? Mr. Porch, do you have any evidence to offer for the respondents. I...