Beard v. Hicks

ANDERSON, J. £iIn an action for injuring or interfering with an easement, the complaint must allege plaintiff’s ownership of the easement in question; but it need not set out the particular manner, whether by prescription, grant, or otherwise, in which the title was acquired — it being sufficient to allege generally plaintiff’s right to the easement and a violation of this right by defendant. If, however, plaintiff undertakes to set out his source of title, the complaint must allege all the facts necessary to be proved to establish the same.”— 14 Cyc. 1220; Gerber v. Grabel, 16 Ill. 217; Story v. Odin, 12 Mass. 157, 7 Am. Dec. 46; Hall v. Hendrick, 125 Ind. 326, 25 N. E. 350. The first count avers that the plaintiff is the owner of and in the possession of a lot fronting on the alley and is entitled to the use of said alley as a means of ingress and egress to and from said lot, and was not subject to the demurrers interposed thereto. The cases of Whaley v. Wilson, 120 Ala. 504, 24 South. 855, and Trump v. McDonnell, 120 Ala. 200, 24 South. 353, are easily diffedentiated from the present case and have no bearing on the sufficiency of the complaint in the case at bar. The complaint was amended by the addition of a second count, and demurrers were filed to said count 2; but we find no ruling upon said demurrers. The judg [334] ment entry does recite the overruling of demurrers to the complaint as amended; but we find no demurrer to the amended complaint. The complaint as amended consisted of counts 1 and 2 and not amended count 2. It appears that, for more than 20 years prior to the erection of the fence complained of an alleyway was open and maintained from Lister’s alley running north to or near the creek bluff, and it was a question for the jury as to whether or not the plaintiff and the public generally had acquired a prescriptive right to same. It is true there was some proof that the defendant, before the user of said alley for a continuous period of 20 years, erected and maintained, for a time, a fence across, the north end of the alley at or near where it intersected with the creek, and at a point where there is a very high bluff, and at such a point where it could not interfere with the alley as a highway, as no .one could travel through the northern opening of same, owing to the high creek bluff at the north of said alley. It was therefore a question for the jury as to whether or not this obstruction was sufficient to intercept the adverse user, by the public, so as to break the continuity of the 20-year prescription. Especially was it a question for the jury, in view of the evidence tending to show that said first fence was put there merely as a means of protection against going over the bluff, and not to obstruct said alley so as to prevent the use of same as a highway. It also appears that the erection of the second fence, the one in question, deprived no one of the use of the alley except the plaintiff, who was cut off entirely from all ingress and egress to and from his home, thus injuring him, not only greater in degree from all others, but different in kind from the public generally, and which would give the plaintiff a right of action, notwithstanding the fence may have been a public nuisance and could be abated by the city. — Whaley [335] v. Wilson, 112 Ala. 630, 20 South. 922; Southern Ry. v. Ables, 153 Ala. 523, 45 South. 234. The plaintiff had the right to show the use to which the alley had been put, the fact that the city repaired and looked after it, and to show that it was his only means of ingress and egress to and from his home. Moreover, there was evidence tending to show a dedication by the owners over 20 years before the last fence was erected, and the repairing of the alley by the city tended to show an acceptance. It was immaterial 'whether Bruce et al. bought a right of way to Lister’s alley, or what they paid for same, as witness testified that they set their fences back prior to ’86 so as to give an opening to Lister’s alley. It was therefore immaterial what they paid for the strip, or whether or not they.bought it. The fact that they previously bought the strip and paid for it was not inconsistent with or contradictory of the plaintiff’s theory of a dedication or the prescriptive use of same, from the opening of the alley up to the time of the obstruction complained of by the plaintiff. We cannot put the trial court in error as to so much of the oral charge as was excepted' to by appellant, It merely instructs them to find such damages as may seem to be reasonable and right. We must presume that the court had previously instructed as to the proper elements of damage, and that this part excepted to referred to the damages as explained by the court, and to which the plaintiff would be entitled to under the law and evidence, in the event they found for the plaintiff. The trial court did' not err in refusing the general charge (No. 3) requested by the defendant, as there was evidence in support of the complaint. Nor was there a variance as to proof of ownership, as the plaintiff owned a life estate in the property and was in pos [336] session and was such an owner as could maintain the suit for interfering with his easement right of the alley.—Walker v. Clifford, 128 Ala. 67, 29 South. 588, 86 Am. St. Rep. 74. There was no error in refusing charge 2 requested by the defendant. If not otherwise bad, it predicates a finding for the plaintiff only in case the alleyway was a public one clear to the creek. It may not have become a public alley clear to the creek, and yet may have been one at the point where the present fence was located. Charge 1 was likewise bad. Charge 4'requested by the defendant Avas properly refused.' If not otherwise bad, it predicates a recovery as to the AAthole complaint upon the fact that the fence was Avillfully and maliciously built, and ignores the second count, which does not charge “malicious” misconduct. Charge 5 refused to the defendant whs misleading, if not otherwise faulty. There may not have been a public alley frQm the south line of plaintiff’s property clear back to the creek, yet it may have been such Avhere the fence was built, and plaintiff Avould be entitled to recover whether it was a public alley all the way to the creek or not. Charge 6 was but the general charge, as to the second count, and was properly refuser!, as there Avas evidence from which the jury could infer a public alley. Charge 7 requested by the defendant was properly refused. If not otherwise bad, it confined the plaintiff to actual or compensatory damages, when there Avas evidence in the case which authorized an assessment of vindictive or punitive damages. Charges 8 and 9 are manifestly bad. The judgment, of the city court is affirmed. Dowdell, G. J., and Simpson and Mayfield, JJ., concur.