Greenwood v. West

54 So. 694, 171 Ala. 463, 1911 Ala. LEXIS 88

• Court: Supreme Court of Alabama
• Decided: February 16, 1911
• Status: Published

Opinion

ANDERSON, J.

This bill was filed to open a road over which the complainant claims a private right of way. The bill does not aver an express grant, and the proof fails to establish a right by prescription, as the use of the road was rather a permissive than an adverse one. Moreover, the proof shows that the road was changed and the route shifted at the will of the owner of the land.—Trump v. McDonald, 120 Ala. 200, 24 South. 353; Rosser v. Bunn, 66 Ala. 89. Counsel for appellant, do not in fact contend for a right of way by an express grant or by prescription, but argue upon the theory of an implied grant as a way of necessity, and because of •the fact that title to the respective tracts was. from a common source.

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.—Washburn on Easements, § 163, 23 Am. & Eng. Ency. of Law, 13; Trump v. McDonnell, supra. Complainant’s tract of land and the tract of the respondents, over which the was is sought, are not for practical purposes contiguous tracts. They corner. They touch only at a mathematical point;- the intervening-corners being owned by a third party. Under these conditions, any grant of a way would involve a servitude upon the lands of a stranger (John Gilbreath.) The chancery court did not err in dismissing the bill of complaint, and the dercee is accordingly affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Sayre*, JJ., concur.