Whaley v. Wilson

• Decision Date: 12 November 1896
• Citation: 112 Ala. 627,20 So. 922
• Parties: WHALEY v. WILSON.
• Court: Alabama Supreme Court

20 So. 922

112 Ala. 627

WHALEY v. WILSON.

Supreme Court of Alabama

November 12, 1896

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

Bill in equity for the abatement of a public nuisance, brought by W H. Wilson against E. S. Whaley. A demurrer to the complaint having been overruled, defendant appeals. Reversed.

The bill in this case was filed on January 1, 1896, by the appellee W. H. Wilson against E. S. Whaley, to abate a public nuisance. The nuisance complained of was an obstruction placed in a public road, which ran through the complainant's land; and the averments of the bill were that the defendant obstructed said road by placing a large stump therein and by running a fence across said road, and that during the month of December, 1895, the defendant built a wire fence across said road, along and near the fine dividing the lands of the defendant and the complainant. It was further averred that the stump and fences placed in and across the road so obstructed it as to render it useless for the purposes of travel, and that, therefore, it was a public nuisance; that by reason of said obstructions the complainant's lands were greatly depreciated in value and he was damaged in the sum of $500, and was further damaged in the sum of $500 by reason of the inconvenience and loss of time incurred by him in having to travel over other and difficult roads to market, etc., and that if said obstructions were allowed to remain in said road irreparable damage would result to complainant. The prayer of the bill was that the court would declare the obstructions a nuisance and would enjoin the defendant from further maintaining them, or further obstructing said road. The defendant demurred to the bill upon several grounds which were substantially as follows: (1) Said bill shows that complainant has a plain and adequate remedy at law; (2) that the damage to complainant as averred in the bill is fixed and permanent and not continuous in its nature; (3) that complainant has acquiesced in what he calls a nuisance for more than a year before filing a bill; and (4) the bill was filed by an individual for the abatement of a common, public nuisance, and shows only a fixed and permanent damage to complainant, which is barred by the statute of limitations for one year, and fails to show that the said nuisance and damage are continuous in their nature. Upon the submission of the cause on the demurrer, the chancellor decreed that the demurrer was not well taken, and overruled it. From this decree the respondent appeals, and assigns the same as error.

W. L. Parks, for appellant.

D. A. Baker, for appellee.

HARALSON J.

In Hoole v. Attorney General, 22 Ala. 194, this court said: "Any obstruction of a public road or highway which renders its passage less commodious, is a nuisance, and whatever doubts may have formerly existed as to the powers of a court of chancery to entertain a bill to enjoin and abate a public nuisance, the jurisdiction of that court for this purpose, at the present day, is well established." See, also, to the same effect City of Demopolis v. Webb, 87 Ala. 666, 6 So. 408. In the last case cited, we sustained such a jurisdiction as based, among others, on the reason that the remedy at law, which a private person had to redress his grievances for such a nuisance, was inadequate, on the ground that one action, or even several, may not be sufficient to adjust such wrongs by reason of the continuous nature of the injury; and that an appeal to the chancery court is a more orderly method of...