Moye v. Thurber

WEAKLEY, C. J. In an action of forcible entry and detainer, before a justice of the peace, neither the question of title, nor of the right of entry or of possession, is involved in the issue; the gist of the action being the entry and detainer by force and violence, and the ousting from a peaceable possession contrary to law.— Knowles v. Ogletree, 96 Ala. 555, 12 South. 397. When the suit is removed from the justice court to the circuit court, this action or one of unlawful entry and detainer is converted into statutory ejectment, and a plaintiff must recover on the strength of his legal title, “unless he can prove that the defendant, or those under whom he claims, entered on said lands under some contract or agreement between plaintiff, or those under whom he claimed, or by the use of force.” — Code 1896, § 2149. It appearing that the plaintiff was excluded from the use of the alleyway by foréc, the case remained in the circuit court as an action of forcible entry and detainer, and must be governed by the rules of law that are applicable to that action, just as if it had not been removed. The real question, then, is whether the plaintiff has shown possession of the strip sued for in such form and manner as to support this action; the legal title not being involved. The solution of this question must depend upon the interpretation to be given to the extract from the bill of exceptions, which constitutes the, evidence in the case. Does it appear that the, plaintiff had merely an easement in the strip sued for, a right of way over it without exclusive dominion, or was she in possession of the strip as would entitle her to maintain the action against one forcibly excluding her therefrom, although the defendant might have, or claim a right to use the strip as an alleyway? The statements in the bill of exceptions must be construed in connection with each other. Although it is first asserted that plaintiff “was in possession of the property sued for,” this is followed by the admission that the property described was “an alleyway and she did not claim the' exclusive ownership thereof,” it being likewise admitted that the defendant had or claimed a right to the alley; and it was further agreed that plaintiff “based her right of recovery solely on the claim that the property was an alleyway, that plaintiff was in pos [183] session of the property, using it as an alleyway, and that defendant by force obstructed her use thereof by fencing it up and keeps her out.” We therefore conclude that the word “possession” must be construed in the light of other statements made in connection with its use, and that, so construed, it was not employed in its technical sense, nor in the sense in which it is employed in our decisions, when stating the scope and purpose of this class of actions. In our opinion, the record makes the case of a suit by the claimant of an easement merely against one who forcibly excluded her from its enjoyment. The inquiry, therefore, arises whether the law authorizes the action of forcible entry and detainer to redress the wrong which, the evidence, for the purpose of the trial, established to have been committed. It is our conclusion, upon principle and authority, that the action may not be maintained. The use of force is not the determining factor. The pivotal point is whether the plaintiff had that possession of the land sued for which is essential to recovery. A private way is regarded as an interest in land of an incorporeal character. “The way owner is not by reason of his ownership entitled to the possession or the right of possession of the tenement subject to the way, but is merely entitled to the reasonable use and enjoyment of the servient soil for the purpose of passage over its surface and to all rights that are properly incident to. the free enjoyment and exercise of the right of passage.” — 23 Am. & Eng. Ency. L. (2d Ed.) p. 25. “A person in the mere use and enjoyment of a way or easement, without more, has no such possession as will entitle him to maintain an action of forcible entry and detainer.” — 13 Am. & Eng. Ency. L. (2d Ed.) p. 748, note, citing Nelson v. Nelson, 30 Mo. App. 184; Lachman v. Barnett, 16 Nev. 154; Roberts v. Trujillo, 3 N. M. 50, 1 Pac. 855. In the case last cited it is said: “An action of ejectment or forcible entry or detainer does not lie to enforce such a right. — Child v. Chappell, 9 N. Y. 246. It is incorporeal, and, of course, could not be delivered by the sheriff. An action on the case may be sustained for its obstruction (Allen v. Ormand, 8 East, 4), or equity may be invoked to restrain interference, but no relief can be granted in the present form of action.” [184] The Alabama cases clearly settle the right to injunctive relief in equity against encroachments upon easements or servitude, although an action for damages at law will also lie. — Lide v. Handley, 36 Ala. 627, 76 Am. Dec. 338; Coleman v. Butt, 130 Ala. 266, 30 South. 364. While the cases of Tenn. & Coosa R. R. Co. v. East Ala. Ry. Co., 75 Ala. 516, 51 Am. Rep. 475, and Farley v. Bay Shell Road Co., 125 Ala. 184, 27 South. 770, declare that an action of ejectment or forcible entry and detainer will lie by a railroad or tollroad company for the recovery of a right of way and roadbed, because the right and use are exclusive, not to be enjoyed with the public or with other persons, and stand in a different category from the ordinary easements, yet both of those cases recognize the general rule, as herein declared, that neither ejectment or forcible entry and detainer will lie for an easement or by a plaintiff who seeks to be let into the use or occupation of a servitude. An ordinary right of way or of common is given as an illustration of the principle. There is no error in the record. Affirmed. Tyson, Simpson, and Anderson, JJ., concur.