Whaley v. Wilson

• Decision Date: 22 November 1898
• Citation: 24 So. 855,120 Ala. 502
• Parties: WHALEY v. WILSON.[1]
• Court: Alabama Supreme Court

24 So. 855

120 Ala. 502

WHALEY v. WILSON.^[1]

Supreme Court of Alabama

November 22, 1898

Appeal from chancery court, Pike county; Jere N. Williams Chancellor.

Bill by W. H. Wilson against E. S. Whaley. From a decree in favor of complainant, defendant appeals. Reversed.

Parks &amp Son, for appellant.

D. A Baker, for appellee.

SHARPE J.

The appellee seeks, by bill in equity, to have removed, as a public nuisance, a fence constructed by the appellant across a certain road averred to be a public highway. The only question discussed by counsel is whether the obstructed road was a public road. Treating the case as it was treated by counsel, and seemingly considered by the chancellor, without deciding whether the facts disclosed by the evidence show that special and particular injury to the complainant distinct from that suffered by him in common with the general public, which is necessary to the right of a private person invoking the aid of a court of equity to have a public nuisance restrained or removed, we have proceeded to a consideration of the question whether the obstructed road was a public road. We have carefully examined the evidence, and are constrained to differ with the chancellor as to the character of the road, and to hold that it was, at the time the obstructions were placed upon it, a private road, in which the general public had no easement or right preventing the defendant from obstructing it on his land in such manner as suited his pleasure or convenience. The road in question called by one of the witnesses a "settlement road," connects two confessedly public roads, a few miles apart, leading into the city of Troy from different directions, and passes through the defendant's land and by land owned by the complainant. The obstruction consisted of a fence, constructed by the defendant, inclosing a part of his land through which the road ran; the fence crossing the road at two places. It is not contended that the road was ever laid out as a public road by the county authorities, or that it was dedicated as a public highway by defendant. The contention is that the road had become public by prescription,-by the uninterrupted use thereof by the public, claiming the right to use the same, for 20 years or more, as a public highway. While it may be admitted that the testimony shows that a road passing through the defendant's land, and connecting the two public roads leading into the city of Troy, was in use by the public for from 30 to 50 years, the complainant and defendant, both of whom were examined as witnesses, testified that the road originally opened across the defendant's land, and used by the public, had been changed by the defendant. The extent of this change is shown by the complainant's own testimony to have been material and substantial. Speaking on this subject, he says: "Said road was changed in part. *** There was a quarter of a mile of said road, or, it may be, a little more, that was not changed. All of said road running through said Whaley's land was changed except a portion of said road at the end where it enters said Troy and Elba road." And, again, he says: "In 1870, when said road was changed, respondent cleared a place, and moved the road about two hundred yards from where it was before. He cut out this road himself." When the change was made, the testimony shows, the defendant closed up the original road, and opened up a new one, almost entirely across the land. The complainant and defendant, however, differ as to the time when this change was made; the complainant, testifying according to his best recollection, fixed the time when the change was made in the year 1870, while the defendant testified positively that it was made in the latter part of 1877, or in the early part of 1878; and the testimony of other witnesses corroborates him in this statement. The burden of proof is on the complainant to show that the obstructed road was a public road, for upon the public character of the road depends his right to relief. He seeks to sustain this burden-First, by showing that the change was made in 1870, more than 20 years before the fence was placed across the road; and, second, by contending that, even if in error as to this, the change did not affect the public character of the road. The first is a question of fact, and, after a careful consideration of the evidence, we are clearly persuaded that the decided weight of the testimony is against him, and in favor of the date fixed by the defendant,-1877 or 1878,-and less than 20 years prior to the date when the fence was placed across the road. We do not understand from the chancellor's opinion that he found this fact for the complainant; on the contrary, it is clear that he based his decision upon the last proposition contended for. He says: "Some fifteen or twenty years ago the defendant changed a portion of the road by clearing up the land through which it ran, by stopping its course through the land so cleared, and by opening a new road around the clearing. This was neither reclamation of the road as against the right of travel, nor discontinuance of the road. It was rather an acknowledgment of the public right to come and go." To this conclusion we cannot give our assent. The change made, it is...