Overton v. Moseley

• Decision Date: 03 February 1903
• Citation: 135 Ala. 599,33 So. 696
• Parties: OVERTON ET AL. v. MOSELEY.
• Court: Alabama Supreme Court

33 So. 696

135 Ala. 599

OVERTON ET AL. v. MOSELEY.

Supreme Court of Alabama

February 3, 1903

Appeal from chancery court, Madison county; Wm. H. Simpson Chancellor.

This was a bill in equity filed by Daniel A. Moseley against David D. Overton and others to enjoin the defendants from obstructing a ditch extending from complainant's land onto the land of the defendants, through which ditch complainant claimed the right to drain off the water from his land. Decree for complainant and defendants appeal. Reversed.

The bill alleged that complainant was in possession of the 60-acre tract and the 40-acre tract described in the opinion and had been in the exclusive, open, notorious, and adverse possession of said real estate for more than 10 years next preceding the filing of the bill, under color of title and claim of right, and is the owner of the same in fee simple that complainant derived title thereto through the deed from Shelby, trustee, to Cowley, mentioned in the opinion (a copy of this deed being made an exhibit to the bill); that at the time of this conveyance said Shelby, as trustee, had the legal title to the northeast quarter of said section; that defendants were, at the time of the filing of the bill, joint owners of and in possession of the east half of said northeast quarter; that, when the said real estate owned by complainant and that owned by defendants were owned by one and the same person, a ditch had been cut along the quarter-section line between the northwest and southwest quarters of section 19, and across the east half of the northeast quarter of said section, for the purpose of draining said 60-acre tract and 40-acre tract; that said ditch did drain said lands, and prevent water from standing thereon, and said ditch has been open and in use for said purpose for more than 30 years, until within the last 12 months, during all of which time the same has been unobstructed and open, and there has been a free flow of water through the same; that said Cowley, under whom complainant derived title to said 60 acres and 40 acres claimed the right to have said ditch open for purposes of drainage, and no one has ever denied the right of the owner of said 40 acres and said 60 acres to have said ditch kept open, until within the last 12 months next preceding the filing of this bill; that complainant, during the time he has occupied and owned said 60 acres and 40 acres, has kept said ditch open, and has frequently opened and cleaned said ditch both on complainant's land and that of defendants; that said ditch, as it now exists, is in the same place and runs exactly as it has since it was first cut, and the right to have said ditch kept open is secured and conveyed to this complainant by said deed of Shelby, trustee, to Cowley, as well as by long and continuous adverse use; that the right to said ditch and the use thereof is also secured to the owner of said real estate now owned by complainant by a deed from Shelby trustee, to persons under whom defendants claimed, conveying said northeast quarter of section 19 (said deed being made Exhibit B to the bill); that complainant is advised that by reason of said long adverse user of said ditch by himself and those under whom he claims, by reason of said ditch having been cut upon the lands of defendants by the then owner of said lands, and also the land of complainant, and the same having been upon the lands now owned by defendants at the time said lands now owned by complainant were conveyed to Cowley by said deed Exhibit A, and by reason of the reservation contained in said deed Exhibit B, he has an easement over the lands of defendants, and the right to maintain said ditch, and have the same kept open so as to permit a free flow of water through the same for the purpose of draining complainant's said land; that defendants have within the past 12 months been threatening to close up said ditch, and have, in fact, obstructed the same. An injunction is prayed, restraining and enjoining defendants from placing any other or further obstruction in said ditch, or from otherwise preventing a free flow of water by means thereof from complainant's land, and across that of defendants. The material contents of Exhibit A appear from the opinion. Exhibit B conveyed, to persons under whom defendants claimed, the northeast quarter of section 19, containing about 160 acres, and recited that it was sold "subject to the rights of Cowley and his heirs and assigns in relation to ditch on south part which are set forth in" deed (describing Exhibit A). The defendants demurred to the bill upon the following grounds: (1) It does not appear from the averments of said bill that the complainant therein has acquired, by conveyance, assignment, or otherwise, the right, title, or interest of said Cowley in or to the strip of land mentioned in the deed of Shelby, trustee, to said Cowley, as conveyed to said Cowley for the purpose of enabling said Cowley to secure a free flow of water from any land conveyed to him. (2) The averments of fact contained in said bill do not show that the complainant has acquired the right of said Cowley in or to the ditch mentioned in said bill, but said bill merely states the opinion or conclusion of the pleader in that regard. (3) The averments of fact contained in said bill do not show that the complainant has any right, title, or interest in or to the east half of said section 19, or any part thereof. (4) Said bill does not allege or set forth how or by what means complainant acquired any right, title, or interest of said Cowley in or to the ditch mentioned and referred to in said bill. (5) Said bill does not show that complainant has any estate or interest in the strip of land occupied by said ditch. (6) Said bill does not show that complainant has acquired, by conveyance or otherwise, any right or estate in or to said ditch. These demurrers having been overruled, defendants answered, and upon final hearing on the pleadings and proofs a decree was rendered granting the relief prayed in the bill.

R. W. Walker and Steele & King, for appellants.

S. S. Pleasants and Douglass Taylor, for appellee.

SHARPE J.

It is in order to first consider whether the deed from Shelby trustee, to Matthew M. Cowley, conveyed an easement for drainage over the strip of land therein mentioned, or the corpus of that strip. The deed begins with recitals of how the land about to be conveyed became vested in the grantor as trustee, of a public sale of that land, and of Cowley's purchase thereat of "sixty acres of the north part of the southwest and forty acres off the south side of the northwest 1/4 Sec. 19 T. 1, Range 1 east containing one hundred acres more or less, and also a strip of land in the E. 1/2 of said Sec. 19 not to exceed one rod in width and of which the center line shall correspond with...