Sellers v. Valenzuela

• Decision Date: 06 November 1947
• Docket Number: 1 Div. 281-A.,1 Div. 281
• Citation: 249 Ala. 620,32 So.2d 520
• Parties: SELLERS v. VALENZUELA.
• Court: Alabama Supreme Court

32 So.2d 520

249 Ala. 620

SELLERS v. VALENZUELA.

1 Div. 281, 1 Div. 281-A.

Supreme Court of Alabama

November 6, 1947

Vickers Leigh & Thornton, of Mobile, for appellant.

Frank S. Coffin, of Mobile, for appellee.

LAWSON Justice.

There are three appeals incorporated in the transcript. First there is an appeal from an order overruling a motion to discharge a preliminary writ of injunction. Second, there is an appeal from an order overruling a motion to dissolve a preliminary writ of injunction. Third, there is an appeal from an order denying a mandatory injunction.

Mrs Sellers, the appellant, and Guillermo Valenzuela, appellee own and occupy adjoining lots situated on the south side of Government Street in the city of Mobile. The lot of Valenzuela is immediately west of that of Mrs. Sellers. Both parties operate tourist homes on their property. There is a driveway leading from Government Street to the rear of the Sellers property, between the houses of these parties, that is, the driveway is west of the house on the Sellers lot and east of the house on the Valenzuela lot. All of these appeals and the issues presented thereby arise as a result of a controversy between appellant and appellee and members of his family as to the exact location and use of this driveway.

The appellant, Mrs. Sellers, was the first to enter the legal arena in so far as this particular driveway is concerned. On October 23, 1946, she filed her bill in the circuit court of Mobile County, in equity, against the appellee, Guillermo Valenzuela, his wife and children, and one Henry E. Adams. This bill sometimes hereinafter will be referred to as the Sellers bill. The purpose of the bill was to have determined the boundary line between the property of appellant and that of appellee and, pending the final hearing and determination of the boundary line, the bill prayed for a temporary injunction restraining the respondents from erecting and constructing a wall or coping on, over or upon any part of the driveway described in the bill, and from interfering in any manner with the use by Mrs. Sellers of said driveway.

On the day that the Sellers bill was filed, Judge Cecil F. Bates, one of the judges of the Mobile Circuit Court, in equity, ordered that a temporary writ of injunction issue according to the prayer of the bill, upon the complainant, Mrs. Sellers, entering into bond in the sum of $500. The bond being executed and approved as required, a writ of injunction was issued on the same day, namely, October 23, 1946, which writ sometimes hereinafter will be referred to as the Sellers injunction. As here pertinent it read: 'Now, Therefore, you, the said Conchetta Valenzuela, Adela Valenzuela, Guillermo Valenzuela, Fred Valenzuela, Matilda Valenzuela, and Henry E. Adams, and each of you, your servants, agents, employees, contractors and subcontractors, are hereby commanded and strictly enjoined from erecting or constructing a wall or coping on, over or upon any part of the driveway or alleyway described in the bill of complaint and from interfering in any manner with the use by complainant of said driveway or alleyway until further orders of this Court.' (Emphasis supplied.)

Service of the Sellers writ of injunction and the bill of complaint upon which it is predicated was made on October 23, 1946, upon all of the parties named in the writ except 'Conchetta' Valenzuela, who was 'not found.'

The Sellers writ of injunction did not attempt to describe the driveway which it purported to cover other than by reference to the bill of complaint. Injunction writs should be clear and specific. In re Willis et al., 242 Ala. 284, 5 So.2d 716. Such a writ as a general rule ought to contain a concise description of the particular acts, things, or property which is within its restraining influence so that there may be no misapprehension on the subject. However, a writ is not too vague or uncertain when it refers to the bill of complaint for the description of the property involved, as was done here, when the parties sought to be enjoined are served with a copy of the bill of complaint as well as with a copy of the writ of injunction. Whipple v. Hutchinson, C.C.N.Y., 29 Fed.Cas. page 938, No. 17,517, 4 Blatchf. 190.

We must look, therefore, to the bill of complaint filed by Mrs. Sellers to determine the location of the driveway. The property of Mrs. Sellers was described therein by metes and bounds. It appears therefrom to be located on the south side of Government Street. The Sellers bill does not describe the Valenzuela lot by metes and bounds, but avers that such property is 'also situate on the south side of Government Street in the City and County of Mobile, State of Alabama, and lying and being east of and adjacent to the above described property belonging as aforesaid to your complainant.' (Emphasis supplied.) As to the said driveway, the Sellers bill averred 'that between the property of complainant [Sellers] and the above-named respondents [Valenzuela], and along the eastern boundary of complainant's [Sellers] property, lies an alleyway or automobile driveway situate entirely or partly on the property to which complainant owns record title and which serves complainant's said property as a means of ingress and egress to and from the rear of the same and which, 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 said property.' (Emphasis supplied.) So it appears from the bill of complaint (1) that Mrs. Sellers and the Valenzuelas own and occupy adjacent lots on the south side of Government Street in the city of Mobile; (2) that between these lots is located a driveway; (3) that the Valenzuela lot is east of the Sellers lot and the said driveway lies along the eastern boundary of the Sellers property situated entirely or partly thereon.

But the Valenzuela property is not east of the Sellers property. It is immediately west thereof. The driveway does not lie along the eastern boundary of the Sellers property, but along its western boundary. The error in describing the Valenzuela lot as lying east of complainant's lot and in placing the driveway on the eastern boundary of complainant's lot has resulted in the litigation from which the appeals here considered were taken.

On November 19, 1946, while the Sellers injunction above referred to was in effect, and before any of the parties therein sought to be enjoined had taken any legal steps to have said writ of injunction discharged or dissolved, Guillermo Valenzuela, one of those named in the said Sellers injunction, filed in the circuit court of Mobile County, in equity, what appears to be a statutory proceeding in rem to quiet title (hereinafter sometimes referred to as the Valenzuela bill) making Mrs. Sellers a party respondent. §§ 1116-1132, Title 7, Code 1940.

The property, title to which is sought to be quieted in the Valenzuela proceeding, is shown by the bill to be situated on the south side of Government Street in the city of Mobile. It is described by metes and bounds. As to such property the bill alleges that Guillermo Valenzuela is in the actual, peaceable, and open possession of it, under and by virtue of a deed made and executed by his daughter Conchita Valenzuela, on February 24, 1933, but which deed was not recorded until November 19, 1946 (the day the Valenzuela bill was filed). Among other things, the said Valenzuela bill to quiet title alleges that 'there is no suit pending to test his [Guillermo Valenzuela's] title to, interest in, or right to possession of said aforesaid, described property'; that Mrs. Eleanor B. Sellers is the owner and in possession of certain real property located in the city of Mobile, which is described by metes and bounds and which it is averred lies immediately east of the previously described Valenzuela property. The said Valenzuela bill then alleges in substance that immediately west of the Sellers house and located entirely on the Sellers property is a narrow driveway, into which extends a 'pair of steps' leading from the west side of the Sellers house; that there is 'an open space or passageway two feet and eight inches in width' solely on the Valenzuela property between the Valenzuela house and the western boundary of the driveway on the Sellers property; that because of the presence of the steps and the the narrowness of the driveway, the drivers of the numerous motor vehicles which use the Sellers driveway, when they reach the point where the steps extend into said driveway, swerve, veer or turn to the right of said steps to avoid hitting them and as a result such vehicles to over or upon the said passageway located on the Valenzuela lot between the Sellers driveway and the Valenzuela house. It is further alleged in the Valenzuela bill as follows: 'Said driving over, on and upon the said property of the complainant as immediately above described having gone on and been carried on to the extent that the down-spout or drain pipe from the roof of complainant's house, and attached to the side of complainant's house, has been run into, broken down and destroyed, causing all the drain water from the roof of complainant's house to flow over and wash away complainant's property unrestrained and uncontrolled; Also by the aforesaid trespass upon and over the complainant's property, the aforesaid storm-sewer or underground drain pipe on complainant's property has been broken through and destroyed, and a large and dangerous cavity left open and unprotected on his said property, said large and dangerous cavity being in close proximity to the east wall of ...