Opinion
1 Div. 242.
January 17, 1946.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Bill in equity by O. D. Dickson and others against James I. Dickson, to restrain obstruction of a road. From a decree overruling a demurrer to the bill as amended, respondent appeals.
Affirmed.
The bill, as amended, is in substance as follows:
Complainants and respondent all reside in the Northwest quarter of the Southwest quarter of Section 36, Township 3 South, Range 2, West in Mobile County. West of the public highway known as Woolfe Ridge Road, which runs from the Moffatt Road Northwardly to Craft Highway through said Section 36.
There is a public roadway running westwardly from said Woolfe Ridge Road approximately 450 feet north of the South line of the Northwest quarter of the Southwest quarter of said Section 36, which has been used as a public road under claim of right by the complainants and others for a period of more than twenty-five years next preceding the filing of this suit. The respondent herein has taken possession of a small parcel of land lying between the lands of complainants on the West and said Woolfe Ridge Road on the East, and said public roadway runs through the land now in possession of respondent, and (it is alleged) that the persons under whom respondent claims title and right to possession of the land now in his possession had, for more than twenty years prior to the possession of respondent, acquiesced in the use of said road and aided in its maintenance; that respondent, after obtaining possession, acquiesced in the use of said road for, to-wit, ten years prior to filing of this bill, and that the public and these complainants have acquired an easement in said land and road by prescription and said road has become a public road; that respondent now uses and has continued to use that part of said roadway running between the land in his possession and said Woolfe Ridge Road.
It is alleged that there is no other road affording access to complainants' homes and they cannot reach their homes without trespassing on the lands of adjoining owners. It is further alleged that respondent did unlawfully and wilfully erect a fence and maintain same across said public road and has ordered complainants not to use said public roadway beyond said fence or to remove said fence at the risk of bodily harm.
W. C. Taylor, of Mobile, for appellant.
The bill is not sufficient to establish a way of necessity. Code 1940, Tit. 19, § 56. To dedicate a roadway there must be a clear and unequivocal dedication. It is not alleged that the roadway was dedicated to the public. Smith v. Dothan, 211 Ala. 338, 100 So. 501; East Birmingham Realty Co. v. Birmingham M. F. Co., 160 Ala. 461, 49 So. 448. Dedication being a voluntary donation, it will not be presumed, but the clearest intention to do so must be shown. Atty. Gen. v. Lakeview Land Co., 143 Ala. 291, 39 So. 303; Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211. The allegations of the bill do not support a right by prescription. Trump v. McDonnell, 120 Ala. 200, 24 So. 353. The description of the property is too uncertain. Wilder v. Campbell, 197 Ala. 179, 72 So. 385; Hughes v. Allen, 229 Ala. 467, 158 So. 307. The bill does not allege sufficient facts for the injunctive relief sought. Cullman Prop. Co. v. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574; Mountain Brook Estates v. Solomon, ante p. 157, 23 So.2d 1.
Jere Austill, of Mobile, for appellees.
The case made by the amended bill is to prevent the obstruction of a roadway and the equity is rested upon the right of a public road by prescription.
The general rule in this jurisdiction is that "an open, defined roadway, in continuous use by the public as a highway, without let or hindrance, for a period of 20 years, becomes a public highway by prescription." Central of Georgia Railway v. Faulkner, 217 Ala. 82, 114 So. 686, 687.
The bill of complaint to successfully assert such a right must show adverse user, excluding the private rights of the owner, continuously and uninterrupted for that period. Stewart v. White, 128 Ala. 202, 208, 30 So. 526, 55 L.R.A. 211; Attorney General v. Lakeview Land Co., 143 Ala. 291, 298, 39 So. 303.
An allegation of user under claim of right is tantamount to an averment of use under a claim adverse to the owner, Trump v. McDonnell, 120 Ala. 200, 204, 24 So. 353, and excludes the idea of permissive user.
Therefore the averment of the amended bill that the way was a public road, used by the complainant and others as such, under claim of right, for more than twenty-five years next preceding the filing of the suit and acquiesced in by respondent and his predecessor in title, negatives any permissive use and presupposes a continuous and uninterrupted user adverse to such owners.
The sections of demurrer, therefore, raising the question were properly overruled.
Error is also urged in overruling the demurrers attacking a phase of the prayer for relief which asks for the establishment of a way of necessity.
The sole equity of the bill is predicated upon a right to the use of a public road created by prescription and there are no averments of fact to justify the establishing of a way of necessity. A "right of way by necessity arises only when the complainant's land is wholly or partly surrounded by the land from the common source and over which the way is claimed", Greenwood v. West et al., 171 Ala. 463, 466, 54 So. 694, 695, and no such case is made by the allegations of the bill.
However, since the bill is sufficient in other respects and contains a proper prayer, this superfluous request for unwarranted relief does not render the bill demurrable but will simply be disregarded. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Thomas v. Skeggs, 213 Ala. 159, 104 So. 395; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; White v. Lehman, 210 Ala. 542, 98 So. 780; Staton v. Rising, 103 Ala. 454, 15 So. 848.
The remaining grounds of demurrer challenge the description of the alleged right of way as too indefinite to form the basis of a decree, but in this we cannot agree. The roadway described is sufficiently certain as an allegation of fact upon which, after the taking of competent evidence, a judgment may be properly rendered.
The decree of the trial court should be and is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.