Florence Land Co. v. City of Florence

McCLELLAN, J. This bill, filed by the municipality against the Florence Land Company, seeks, upon final hearing, to permanently enjoin the company from the use of what is termed a “public park,” called “Monument Park,” in that city. It has been consistently ruled by this court, following the analogy afforded by an earlier ruling with respect to the averment of the navigability of a stream in this state, that an allegation that a road or way was a public road was the mere conclusion of the pleader, and, if so, that the pleading was demurrable on that ground. — Jones v. Bright, 140 Ala. 268, 271, 37 South. 79; Cochran v. Purser, 152 Ala. 354, 356, 44 South. 579; Harbison v. Campbell, 178 Ala. 243, 250, 59 South. 207. The first cited, decision was rested, mainly, upon that pertinently made in Walker v. Allen, 72 Ala. 456, where it was held that an averment that a river is a “navigable river” is a mere legal conclusion. The fourth paragraph of- the bill is as follows: “Situated in the city of Florence is a park or public ground known as ‘Monument Park,’ which park or public ground is bounded on the north by Spring street, on the east by Oak street, on the south by Terrace street, [181] and on the west by Chestnut street, to which park or public ground the citizens of Florence, and the public generally, have for many years had the right to resort for recreation and pleasure, and to which the citizens, and the public generally, did, before the wrongs hereinafter complained of, and for many years, resort for said purposes.” Neither the allegations of this paragraph, nor any or all of those elsewhere in the bill, suffice to exempt the pleading from the effect of the objection before indicated. Otherwise than the flat assertion that citizens have, and had for “many years,” exercised the right to use the place for recreation and pleasure, which itself is no more than a legal conclusion, there is no averment that excludes the idea that such general public use of the plot Avas not permissive only. — Jones v. Bright, supra. The fact that the descriptive term “park” is employed is of. no more effect than was the terms “road” or “public road” in the cases cited. There was error in overruling grounds of demurrer numbered from 13 to 16, inclusive. The bill should show, through the allegations of facts and circumstances, the right of the public to the use of area described in the bill. The decree overruling the demurrer is reversed. The cause is remanded. Reversed and remanded. Anderson, O. J., and Sayre and Gardner, JJ., concur.