Sellers v. Valenzuela, 1 Div. 285.

• Court: Supreme Court of Alabama
• Citation: 249 Ala. 627,32 So.2d 517
• Docket Number: 1 Div. 285.
• Parties: SELLERS v. VALENZUELA et al.
• Decision Date: 06 November 1947

32 So.2d 517

249 Ala. 627

SELLERS
v.
VALENZUELA et al.

1 Div. 285.

Supreme Court of Alabama

November 6, 1947

[249 Ala. 628] [32 So.2d 518]

Vickers, Leigh & Thornton, of Mobile, for appellant.

Frank S. Coffin, of Mobile, for appellees.

FOSTER, Justice.

The question on this appeal is whether there was error in sustaining the demurrer to the bill filed by appellant.

The prayer of the bill is to establish and define the true and correct boundary line between the adjoining city lots of complainant and respondents, involving also the claim of an easement along said line extending partly on property of respondents; and, pending the final hearing and determination of said boundary line, that a temporary injunction issue restraining respondents from interfering in any way with the use by complainant of the driveway or alleyway between them; that on the final hearing the injunction be made permanent. [249 Ala. 629] Such was the nature of the case of Fuller v. Blackwell, 246 Ala. 476, 21 So.2d 617.

It is alleged in the bill that a dispute exists between complainant and respondents as to the true and correct boundary line between their respective properties. This gives equity to the bill in that aspect. Ford v. Beam, 241 Ala. 340, 2 So.2d 411; section 2, Title 47, Code; section 129(5), Title 13, Code; Smith v. Cook, 220 Ala. 338, 124 So. 898.

The fourth paragraph of the bill as amended alleges the existence of an alleyway along the western boundary line of complainant's property, situated entirely or partly on complainant's property, and serves said property as a means of ingress and egress to and from the rear of it, and that for more than 25 years next preceding the filing of this suit has been in the possession of and used exclusively by complainant and her predecessors in title under claim of ownership for the purpose of affording means of ingress and egress to and from the rear of her property.

To sustain a bill to enjoin the obstruction of an easement, except as incidental to other equitable relief, it must appear that the remedy at law is either doubtful, difficult or not sufficient to grant adequate relief. Lide v. Hadley, 36 Ala. 627, at page 635, 76 Am.Dec. 338. An action for damages is not sufficient when the obstruction is permanent or continuous, or destroys the right itself. Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559; Malone v. Decatur Cotton Compress Co., 211 Ala. 522, 100 So. 807; 28 Corpus Juris Secundum, Easements, § 107. The allegations of the bill are sufficient in this respect to sustain the equity of a bill for that purpose as against the claim that there is an adequate remedy at law. Jackson v. Snodgrass, 140 Ala. 365, 37 So. 246. Moreover, it is incidental to the equitable power of the court to establish a disputed boundary line.

But the bill must sufficiently show the existence of the easement to justify such relief. And if the claim of an easement is by prescription, and if complainant sets out the source of his title, the allegations sufficient to sustain that claim should be made in a bill seeking to enjoin its obstruction, (Beard v. Hicks, 163 Ala. 329, 50 So. 232): that is, that the user has not only been for 20 years or more, but it must have been adverse to the owner of the estate over which the easement is claimed, under claim of right, exclusive, continuous and uninterrupted, with actual or presumptive knowledge of the owner. Hill v. Wing, 193 Ala. 312, 69 So. 445; Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559; Steele v. Sullivan, 70 Ala. 589.

The allegations of the bill being that the complainant and her predecessors in title have been in possession of it and used it exclusively for more than 25 years next preceding the filing of the...