Williams v. Prather
| Decision Date | 09 May 1940 |
| Docket Number | 4 Div. 121. |
| Citation | 239 Ala. 524,196 So. 118 |
| Parties | WILLIAMS v. PRATHER ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Suit in equity by Albert J. Williams against Mrs. M. L. Prather, as executrix of the will of W. B. Prather, deceased, and others to enjoin interference with the use of an alleged public road. From a decree for respondents, complainant appeals.
Corrected and affirmed.
Chauncey Sparks, of Eufaula, for appellant.
J. B Hicks, of Phenix City, and H. A. Ferrell, of Seale, for appellees.
Complainant filed this bill seeking injunctive relief against respondents' obstruction of a certain road, which he insists is a public road, leading from the Hitchitie Settlement road and across the lands of respondents, into and through his lands.
There is no pretense this road was established or maintained by any public authorities, but complainant's case rests solely upon the doctrine of prescription through long and uninterrupted use thereof by the public as a matter of right. Ritter v. Hewitt, 236 Ala. 205, 181 So. 289; Central of Georgia R. Co. v. Faulkner, 217 Ala. 82 114 So. 686; Newell v. Dempsey, 219 Ala. 634, 122 So. 881.
Nor is it questioned that complainant nas shown damage peculiar to himself, that is, as to the matter of practical access from his lands to the public markets, and necessity for the road for the proper enjoyment of his property. Ritter v. Hewitt, supra.
The case presents purely a question of fact--whether the road is in fact a public road or only a private or plantation road, as some of the witnesses denominate it.
Respondents insist that whatever use was made of this road by the public was permissive only, and that there has been no such continuous and uninterrupted use by anyone for the prescriptive period of twenty years, such as to create a presumption of dedication. Newell v. Dempsey, supra.
On the motion to dissolve the preliminary injunction writ theretofore issued numerous affidavits were offered by the respective parties. Those for complainant tended to show continuous and uninterrupted use of the road by the parties as a matter of right for a period of more than twenty years, and pictures were introduced of some portions of the road indicating long usage,--some of the affidavits stating as much as fifty years or more. Most of these affidavits are of the same verbiage with changes only as to the length of time affiant had known the road, and it appears some of them were fully prepared when presented to the affiant for signature. A number of those giving affidavits to complainant (among them Arrant, Screws, Jackson and Kelly) subsequently repudiated the statement therein that the road was a public road, and made affidavits for respondents in support of the theory of its private character, and that whatever use was made of the road was permissive only.
In addition, respondents offer affidavits of a number of citizens familiar with the road to the effect it was always considered simply as a plantation road, and that no member of the public made use thereof as a matter of right.
Perhaps considered from the standpoint of affidavits alone, the preponderance of the proof supports respondents' theory of the case. But the submission was not on affidavits alone. Several of the affiants testified in the criminal prosecution case of complainant when charged with trespass,--the presiding judge being the same official who sat as chancellor in this equity proceeding.
Among other issues in that prosecution was that of the character of this particular road, and the chancellor on that trial saw and heard the witnesses as they testified in regard thereto. The full record of that trial was by agreement offered in evidence on this submission, and its probative force as thus indicated cannot be disregarded. Nelson v. Hammonds, 173 Ala. 14, 55 So. 301.
There are other material facts disclosed by all the proof which we consider of much importance. Affiant Newsome gives a history of this road, and his affidavit discloses that in fact there have been in the course of forty-five years three roads along this general direction--all of a private character. He details the disagreement arising over one of these roads, and the change to the present road, and that this affiant himself built a wire fence across this road in 1916, which completely closed it for two years or more. Then there was a gate across this road, sometimes kept closed; and in 1924, 1925 and 1926 when one Bellamy lived at the "Treadaway Home House" (as we understand the record, complainant now owns the Treadaway place), the gate across the road was "kept nailed up most of the time." ...
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Berger v. Berger
...an intention on the part of the owner to assume and assert ownership and possession of the land over which the road runs. Williams v. Prather, 239 Ala. 524, 196 So. 118. In Pierce v. Jones, 207 Ark. 139, 179 S.W.2d 454, it was held that where a landowner places gates across a road through h......
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Valley Heating, Cooling & Elec. Co. v. Alabama Gas Corp., 6 Div. 754
...488, 187 So.2d 244. 6. Where there is grave doubt as to complainant's right, preliminary relief will generally be denied. Williams v. Prather, 239 Ala. 524, 196, So. 7. When a temporary injunction is requested, 'the right of complainant must be clear and unmistakable on the law and the fact......
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Smith v. Smith
...presents purely a question of fact--whether the road is in fact a public road or only a private ... road...." Williams v. Prather, 239 Ala. 524, 526, 196 So. 118, 119 (1940). Our standard of review is whether the trial court's decree is supported by the evidence. Unless there is not suffici......
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Alabama Law Enforcement Officers, Inc. v. City of Anniston
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