Murray v. Ealy

• Decision Date: 06 November 1899
• Citation: 57 S.W. 412
• Parties: MURRAY v. EALY.
• Court: Tennessee Supreme Court

57 S.W. 412

MURRAY v. EALY.

Court of Chancery Appeals of Tennessee.

November 6, 1899.

Appeal from chancery court, Marshall county; Walter S. Bearden, Chancellor.

Bill by L. L. Murray against F. M. Ealy. From a decree for plaintiff, both parties appeal. Reversed.

Smithson & Armstrong, for complainant. Horace Merritt and G. W. Thompson, for defendant.

WILSON, J.

The first bill in this case was filed by the complainant May 20, 1898. It is quite lengthy. The substance of it is that the defendant was obstructing a public road crossing his land, and leading from the residence of complainant to another public road, and seeking to have the obstructions abated as a nuisance, and to recover damages caused to complainant by their erection across the road in question. The contention of the bill is that this road had been a road used as of right by the public for a period "whereof the memory of man runneth not to the contrary"; that it had been dedicated to the public; and that, in addition, it was a passway of necessity to complainant, inasmuch as it was the only practical outlet he had from his premises to the established and publicly controlled public road. The bill was demurred to by the defendant on the following grounds: (1) It shows on its face that the matters complained of in it were caused by the wrongful act and conduct of the complainant, and hence he alone is responsible for them. (2) The bill shows on its face that the complainant refused to do equity to the defendant, and hence he was entitled to no relief, on the principle "that he who seeks equity must do equity." (3) The bill shows on its face that the road sought to be opened is not a public road, and hence the court will not grant the relief sought. (4) The bill shows on its face that defendant recently came into possession of the land over which the road or passway runs, without any notice of the rights or equities attempted to be set up by complainant. (5) The bill shows on its face that complainant gave six months' notice to defendant to build a fence, and it shows that defendant's compliance with this notice is what he complains of in his bill. It appears that when the case came before the court on bill and demurrer, the complainant dismissed his bill so far as it sought the recovery of any damages, and thereupon the demurrer was overruled. The defendant, in his answer, denied all the material allegations of the bill. This answer is quite lengthy. We need not recite in detail its allegations. The substance of the contention of the defendant in his answer is that the road or passway in controversy was simply a private passway from the residence of the complainant to the public road; that it had in no sense ever been dedicated to the public; that its use as a private passway had always been at the sufferance of the adjoining landowners over which it passed; that the complainant had not acquired, by adverse use under claim of right, any easement in said passway where it ran across the land of defendant; that it was not a way of necessity to complainant; and that, as complainant had refused to continue the dividing fence between their adjoining farms as a partnership fence, and had cut loose from him, he was compelled to fence across the passway, and inclose his land, in order to protect his crops and have water for his stock. July 2, 1898, complainant filed a bill to enjoin defendant from putting a fence across or obstructing the road where it crosses his land. A writ of injunction issued under the prayer of this bill. It was answered under oath, and all of its material averments denied, and the chancellor was applied to at chambers to dissolve the injunction on the bill and answer. He declined to dissolve the injunction entirely, but modified it so as to permit defendant to fence in his premises by putting a gate across the passway, so as to permit complainant to pass over his land along said passway. A short while there after, at the session of his court, the chancellor granted a further modification, allowing the defendant to erect two gates. A large volume of evidence was produced by the parties, 28 depositions being taken in the case. The first bill and the injunction bill were by consent consolidated, and heard together by the chancellor December 14, 1898. He decreed that the complainant had the right to use the road or passway in controversy over the land of defendant across the ford over the creek as it now is, but subject to the right of the defendant to erect two gates across said passway, as allowed him in the two previous interlocutory orders made in the cause, to the end that the defendant might properly inclose his land. He denied any other or further relief sought in the bill. He taxed complainant with the cost of his witnesses, and the defendant with the remainder of the cost. From this decree both parties prayed and were granted appeals to the supreme court. Defendant perfected his appeal. The complainant did not perfect his, but has brought up his feature of the case and his complaint by writ of error. The error, in substance, assigned by complainant is to the action of the court in permitting defendant to erect two gates across the passway in question, and in taxing him with the cost of his witnesses. The errors assigned by the defendant are six in number. They may all be treated or embraced in his contention that the complainant had acquired no right to an easement way across his land by deed, dedication, or prescription, and that it was in no legal sense a way of necessity to him, and that, therefore, the court should have dismissed the bill entirely, and taxed the complainant with the entire cost.

We have examined this record, with all of its voluminous evidence, relevant and irrelevant, competent and incompetent. Able counsel on both sides candidly admit that a large mass of the evidence is utterly foreign to the real and legal issues raised by the pleadings. And while, in a general way, a part of this irrelevant evidence appears to have been objected to as the depositions were being taken, the action of the chancellor, so far as disclosed by the record, upon these objections, seems not to have been invoked. But, taking the evidence as a whole, and considering it all, there can be no reasonable pretense thereunder that the road or passway in question is or ever was a public way, passway, or...