Alabama Power Co. v. Ray

71 So. 2d 91, 260 Ala. 506, 1954 Ala. LEXIS 314
CourtSupreme Court of Alabama
DecidedMarch 18, 1954
Docket6 Div. 529
StatusPublished
Cited by9 cases

This text of 71 So. 2d 91 (Alabama Power Co. v. Ray) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Power Co. v. Ray, 71 So. 2d 91, 260 Ala. 506, 1954 Ala. LEXIS 314 (Ala. 1954).

Opinion

LAWSON, Justice.

This proceeding was filed in the circuit court of Tuscaloosa County, in equity, by Alabama Power Company, a corporation, against R. M. Ray and Myrtle Boyd Ray.

Complainant prays for a decree requiring the respondents to remove a building which the bill alleges was constructed by the respondents at a place on complainant’s right of way so as to constitute a fire hazard to complainant’s transmission lines.

From a decree sustaining the respondents’ demurrer, the complainant has appealed to this court. The trial court sustained the demurrer without designating the ground or grounds thereof which were considered well taken. A demurrer is a single entity and if one ground is good a decree sustaining the demurrer is correct. Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779.

It is settled that the equity courts of this state have jurisdiction to enjoin the obstruction of a private easement ánd to require the removal of such obstruction. West v. West, 252 Ala. 296, 40 So.2d 873; Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559; Jackson v. Snodgrass, 140 Ala. 365, 37 So. 246.

Any person creating or maintaining an obstruction may be sued whether he has any interest in the premises on which the easement is located or not. Hardin v. Sin Claire, 115 Cal. 460, 47 P. 363.

To sustain a bill to enjoin the obstruction of an easement except as incidental to other equitable relief, it must appear that the remedy at law is either doubtful, difficult or not sufficient to grant adequate relief. An action for damages is insufficient when the obstruction is permanent or continuous or destroys- the right itself! The allegations of the bill here under consideration are sufficient as against the claim that there is an adequate remedy at law. Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517.

Such a bill must sufficiently show the existence of the easement to justify the relief. Sellers v. Valenzuela, supra.

The bill must describe the easement so as to show the nature, extent, and location of the right claimed in order that a definite decree may be entered. Cleveland, C., C. & St. L. Ry. Co. v. Griswold, 51 Ind.App. 497, 97 N.E. 1030; Beck v. Lane County, 141 Or. 580, 18 P.2d 594; Shedd v. American Maize Products Co., 60 Ind.App. 146, 108 N.E. 610; Nutter v. Kerby, 120 W.Va. 532, 199 S.E. 455; Hitchcock v. Lovelace, 47 Cal.App.2d 818, 119 P.2d 151; De Reus v. Peck, 114 Colo. 107, 162 P.2d 404. But it is not necessary to describe in the bill of complaint the servient tenement by metes and bounds, if the allegations of the bill sufficiently identify and locate the property and the way so that they can be definitely located. Kotick v. Durrant, 143 Fla. 386, 196 So. 802.

The complainant, Alabama Power Company, claims an easement by virtue of an instrument which was recorded in the office of the judge of probate of Tuscaloosa County on September 23, 1940, which in[509]*509strument was duly executed by S. ,G. Hamilton and Claire G. Hamilton on July 19, 1940. The said instrument, which is made an exhibit to the bill, reads in pertinent parts as follows:

“We, S. G. Hamilton and Wife, Claire G. Hamilton, for and in consideration of the sum of One Hundred Seventy Five & no/100 Dollars ($175.00) to us in hand paid by Alabama Power Company, a corporation, the receipt whereof, is acknowledged, do hereby grant to said Alabama Power Company, its successors and assigns, the right to construct, operate and maintain its lines of poles and towers and appliances necessary in connection therewith, as located by the final location survey heretofore made by said Company, for the transmission of electric power with the right to string thereon from time to time electric power and telephone wires and the right to permit other corporations and persons to attach wires to said poles and towers upon, over and across the following described lands situated in Tuscaloosa County, Alabama:
“The East 37% feet of Lots Nos. 2 and 4, of the Crestview Subdivision according to the Plat and Plan thereof, as recorded in Map Book 4, on Page 132, in the Probate Office of Tuscaloosa County, Alabama, situated in W. % of W. % of E. '% of N.W. %, Section 20, Township 21, Range 9, which lies North of Birmingham Highway.
“Together with all the rights and privileges necessary or convenient for the full enjoyment or use thereof, including the right of ingress and egress to and from said lines; and also the right to cut and keep clear all trees, and to keep clear other obstructions, that may injure or endanger said lines.
“To Have and Hold the same to the said Company; its successors and assigns- forever.
“In Witness Whereof, we have hereunto set our hands and seals, this the 19th day of- July, 1940.”

' We think ¡felfear that the description used in the instrument just quoted above was not intended to define the limits of the right of way, but to designate the place where it was to be reasonably enjoyed. The terms of the grant, considered in reference to the locality and situation of the premises, do not operate to pass a right to the unobstructed use of the entire 37% feet described, but to the convenient use of so much as may be necessary to the purposes intended by the grant. Long v. Gill, 80 Ala. 408; In re City of Buffalo, 65 Misc. 636, 120 N.Y.S. 611; Cleaves v. Braman, 103 Me. 154, 68 A. 857; McKenney v. McKenney, 216 Mass. 248, 103 N.E. 631; Anderson v. De Vries, 326 Mass. 127, 93 N.E.2d 251, 254.

The instrument of July 19, 1940, is not void for want of sufficient description of the easement. Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363; Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 75 So. 574; Looney v. Blackwood, 224 Ala. 342, 140 So. 400.

When a conveyance of a right of way does not describe or define it by metes and bounds, the grantee is entitled to a convenient, reasonable and accessible way, dependent upon the condition of the place and the purpose for which it was intended and the nature of the acts of those having the right of user, and reasonable as respects the rights of the grantor, as well as the grantee. Birmingham Realty Co. v. Birmingham Belt R. Co., 250 Ala. 623, 35 So.2d 503; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Western Union Tel. Co. v. Louisville & N. R. Co., 202 Ala. 542, 81 So. 44; Looney v. Blackwood, supra; Long v. Gill, supra.

The only specific reference in the bill of complaint as to the right of way claimed by the complainant is found in § 3 of the bill, which reads as follows:

“Complainant further alleges that as a part of its right of way in Tuscaloosa County, Alabama, it acquired by conveyance from S. G. Hamilton arid wife, Claire G. Hamilton, a right of way as set forth and contained' in a [510]*510conveyance executed and delivered by them to .Complainant,- such conveyance . being dated July 19, ¡1940,. and .being. - marked Exhibit ‘A’ and made'-a part ; of this bill of- complaint; .that the.,;, right of way. .conveyed, t-he.r.ehy. iis der.. scribed as follows':-■ ,- ., ,
“A part o’f the East 37% feet' of Lots Nos.

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Bluebook (online)
71 So. 2d 91, 260 Ala. 506, 1954 Ala. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-power-co-v-ray-ala-1954.