Tutwiler v. Kendall

• Decision Date: 27 November 1896
• Citation: 113 Ala. 664,21 So. 332
• Parties: TUTWILER v. KENDALL.
• Court: Alabama Supreme Court

21 So. 332

113 Ala. 664

TUTWILER v. KENDALL.

Supreme Court of Alabama

November 27, 1896

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Bill by Joseph Kendall against E. M. Tutwiler. From a decree for plaintiff, defendant appeals. Reversed.

Garrett & Underwood, for appellant.

W. K Terry, for appellee.

McCLELLAN J.

This bill is filed by Kendall against Tutwiler. Its object is to compel the respondent to remove certain obstructions from an alleged public road, and to enjoin him from obstructing said road in the future. The right to relief is rested, or attempted to be rested, on three grounds: First, that the road described in the bill has become a public thoroughfare by adverse user of it by the public continuously for 20 years, notoriously, and under claim of right so to use it second, that the road in question was dedicated to the public use by the owners of the fee in the land over which it runs and, third, that as between the complainant and the public on one hand, and the respondent, on the other, the latter is estopped to challenge the public character of the way. The road is described in the bill as running through or by the place of complainant, being the E. 1/2 of the N.W. 1/4 of the N.W. 1/4 of section 3, township 17, range 4 W., in Jefferson county "northwardly to the county [Birmingham and Jasper] road, distant about 150 yards from orator's house," over lands owned by the respondent. In the bill proper, no name is given to this alleged road; but the theory of complainant, as fully disclosed by a map exhibited to the bill and in the evidence, and set forth in the argument of counsel, is that this road is part and parcel of the "Crocker trace" or "Crocker blazes,"-a road which was opened by the early settlers, 40 or 50 years before bill filed, from a pointwest of the site of the present town of Adamsville, through that site and on to Crum's place, about 10 miles from the site of the present city of Birmingham. This road or trace, probably throughout its course, and certainly in so far as it has any connection with this case, was upon the public domain, was opened without authority of law, and was never established or recognized by the commissioners' court as a public road in any way. Of course, while the title to the land over which this road ran continued in the United States, the public could acquire no rights in this respect of this road, under the doctrine of prescription. It is, however, shown in the case that the land over which that part of the road which is alleged to pass by Kendall's place runs passed out of the government, and into individuals, more than 20 years before the filing of the bill. And it may be admitted that if the road from which the bill seeks to have obstructions removed was and is a part of the Crocker trace or Crocker blazes, the complainant has shown such length of continuous user on the part of the public as of right as would vest the right of user in the public by the operation of the rule of prescription, and entitle him to the relief prayed. We do not, however, find, on the evidence, that the road which sometime extended through or by complainant's place northwardly to the Birmingham and Jasper road, distant about 150 yards from complainant's house, conceding there was such road, was at any time a part of the Crocker trace. Some witnesses for the complainant depose that it was, but, in the main, their testimony to this effect is in the way of vouching the correctness of a map which is attached as an exhibit to the bill, and upon which the road involved in the case appears to be a part of the Crocker trace. Most of these witnesses are illiterate, signing their depositions by cross-mark. This, of course, is an infirmative consideration in weighing their evidence. Then, too, their testimony is in the nature of an opinion or belief, rather than positive and direct. They say, severally, for instance, that, "As far as I can see, the map is correct"; "The map appears to be correct"; "It seems to me to be correct," etc. And two or three of the same witnesses testify to facts on cross-examination which are wholly inconsistent with the map. One swears that the Crocker trace, along by Kendall's, ran northwest and southeast, and not northwardly, as the road sought to be cleared is alleged in the bill and shown by the map to run. Another says that the Crocker trace and the Birmingham and Jasper roads fork or separate immediately at Adamsville; that a certain building in the village, the Railroad Depot House, "is right in the fork of the Crocker blazes and Birmingham and Jasper road"; and that the two roads do not unite east of Adamsville. Another of these witnesses was one of the viewers who laid out the Birmingham and Jasper road. He testifies that the latter road followed the Crocker trace from about two miles west of Adamsville to that village, and "then leaves the Crocker trace to the right a little less than a quarter of a mile. It leaves it a quarter of a mile northwest of Kendall's place. The reviewers refused to lay out the new Birmingham and Jasper road, along the line of the Crocker blazes, from Adamsville to Glover's Ferry road, by Kendall's place, when suggested by one of the viewers, and adopted the present route." The testimony of respon...