Stewart v. White

• Decision Date: 04 March 1901
• Parties: STEWART ET AL. v. WHITE ET AL. [1]
• Court: Alabama Supreme Court

30 So. 526

128 Ala. 202

STEWART ET AL. v. WHITE ET AL. ^[1]

Supreme Court of Alabama

March 4, 1901

Appeal from chancery court, Cherokee county; R. B. Kelly Chancellor.

Bill by T. N. White and others, as deacons of the Liberty Baptist Church, against B. M. Stewart and others. From a decree overruling a demurrer to the bill, defendants appeal. Reversed.

The defendants demurred to the bill, assigning 26 grounds of demurrer, which may be summarized as follows: (1) That complainants have no right to maintain the suit, and are improper parties. (2) That the bill shows that Liberty Baptist Church is a necessary party, and is the only proper party complainant, to this suit. (3) That respondents, as individuals, are improperly joined as respondents with partnership, and a recovery of damages is sought against the individuals composing for a tort alleged to have been committed by partners. (4) That the grant of said lands and the use of the spring is to the church, and not the deacons. (5) The bill claims damages for distinct causes of action,-that is, one for the injury to the spring, and the other for the use of the creek for baptismal purposes,-and such claim for damages is too remote, indefinite, and uncertain; and complainants, as deacons, show no easement or prescriptive right in the spring or stream; and it is not averred that the grantors in the deed were in possession of the land and spring when such deed was made. (6) It is not shown that complainants, as such deacons, have been in the open, notorious, and continuous possession of said spring and stream for 20 years. (7) That complainants are estopped to complain of such injury, having permitted defendants to erect said dam without objection. The defendants also moved to strike out of the bill the claim for damages, upon the ground that on the facts averred there is shown no proper element of damages, and such damages as claimed are too remote and uncertain.

Burnett & Culli, for appellants.

Whitson & Graham, for appellees.

SHARPE J.

By this suit the complainants, claiming to sue "as deacons of Liberty Baptist Church," seek to enjoin the maintenance of a milldam, which, by raising the waters of Hurricane creek, is alleged to have injured a spring, and also a place used for administering the rites of baptism, in which they claim to hold rights for the church, which is alleged to be an unincorporated religious association. Damages are also sought for alleged past injury resulting from the unlawful erection of the dam. The bill alleges the existence of a deed which purports to have been made in 1858 by 12 persons signing as grantors to "William Robertson and Jas Horton, as deacons of Liberty (H. Creek) Baptist Church, and to their successors as deacons of said church," to whom the deed purports to convey, for the use of the church, a lot of land described as "commencing at the bridge on the Jacksonville & Rome road on the south bank of Hurricane creek, running down said creek 22 rods to a water oak, thence southwest to a corner, thence northeast 19 rods to said Jacksonville & Rome road, thence along said road 22 rods to the beginning, in the _____ quarter of section _____ in township twelve of range ten, containing two and three-fourths of an acre, more or less." The deed also contains the following clause: "Said party of the first part [the grantors], for and in consideration as aforesaid give and grant to said church the privilege of using above said bridge and road unincumbered by them and their assigns reserving to themselves the privilege of using said spring also; and the party of the first part for themselves, their heirs, administrators, and executors, do, and by these presents will, forever warrant and defend said titles as aforesaid to said church from their heirs and every person or persons whatsoever." The bill further avers that "the said church, through its deacons, for the use and benefit of said church, has been in the sole possession and continuous use of said spring since 1858 to the present time and has had the control of said spring, through its deacons, for the use and benefit of said church; that their possession has been open, notorious, and adverse for more than twenty years before the filing of this bill; that the deacons of said church have been in the open, notorious, and adverse possession of said creek on the north boundary of said lot for the use and benefit of said church for baptismal purposes for more than twenty...