Trump v. McDonnell

• Decision Date: 12 June 1896
• Parties: TRUMP v. MCDONNELL.
• Court: Alabama Supreme Court

20 So. 524

112 Ala. 256

TRUMP v. MCDONNELL.

Supreme Court of Alabama

June 12, 1896

Appeal from chancery court, Madison county; Thomas Cobbs Chancellor.

Bill by Eugene Trump against Archie McDonnel, Jr., to establish an alleged private right of way, and to enjoin its obstruction. From a decree dissolving the temporary injunction, and reserving further orders and decrees, complainant appeals. Reversed.

The decree is as follows: "This cause, coming on to be heard, was submitted in term time, on the pleadings and the evidence, and was argued by counsel; and, the evidence being voluminous, the court held up the case for examination and decree in vacation; and, having examined the case with great care, the court is of the opinion that the complainant is not entitled to relief. It is ordered, adjudged, and decreed that the temporary injunction heretofore granted be, and the same is, dissolved. All other orders and decrees are reserved until the next term of the court. The objections to the testimony are not passed upon, but the court only regards that which is legal. If the complainant desires to appeal from this decree, and reinstate the injunction, the amount of the bond is set at five hundred dollars, conditioned to prosecute an appeal to effect, and to pay the defendant such damages as he may sustain if the supreme court should decide adverse to him on said appeal. Upon execution of said bond with sureties to be approved by the register, then the injunction will be reinstated, to await the decision of the supreme court."

Shelby & Pleasants and Humes, Sheffey & Speake, for appellant.

Tancred Betts and R. W. Walker, for appellee.

HEAD J.

The purpose of the bill was to protect and establish an alleged private right of way, which the appellant claims over the land of the appellee, and which leads from appellant's house to the Triana pike, a public road in the vicinity. The bill alleged that the appellee was about to obstruct the way by building a fence across it; and a preliminary injunction was sought and obtained at the institution of the suit restraining such obstruction. The bill also prayed that the injunction be made perpetual, and for general relief. The case was put at issue by answer. Testimony was taken, and the cause duly submitted for final decree. The question chiefly litigated was whether, upon the facts, the user of said road over the defendant's land, by the complainant and those under whom he claims, was merely permissive, or whether an easement had been acquired by its adverse enjoyment, coupled with the required conditions, for the period of 10 years, which is adopted by analogy to the statute of limitations barring actions for the possession of land, in this state, as a sufficiently long time to create a prescription or presumptive grant. Nininger v. Norwood, 72 Ala. 277; Wright v. Moore, 38 Ala. 596; Stein v. Burden, 24 Ala. 130; Washb. Easm. (4th Ed.) top page 148; 19 Am. & Eng. Enc. Law, p. 11. The chancellor was of opinion the complainant was not entitled to relief, and entered decree, which the reporter will set out in full.

1. It is settled by an unbroken line of decisions in this court, in harmony with the rule existing generally, that the existence in the record of a final or an appealable interlocutory decree is a jurisdictional fact, without which an appeal cannot be entertained, even by consent of parties. We therefore feel bound to take notice, upon our own motion, of the character of the decree of the chancery court, although counsel on both sides have argued the case as if the appeal were prosecuted from a final decree, opening the whole controversy to investigation and settlement here. The fact is that, although the chancellor expressed the opinion that the complainant is not entitled to relief, the ordering part of the decree-that which seems to determine its character-does no more than dissolve the temporary injunction. All other orders and decrees are expressly reserved until the next term of the court. That an order or decree merely...