West v. Louisville & Nashville Railroad , 137 Ala. 568 ( 1902 )

DOWDELL, J.

The facts averred in the bill show a joint easement in the complainant and respondent in a private’ alley-way. Yet, the theory of the bill and its purpose, according to its averments, when construed more strongly against the pleader, as the rule of pleading requires, is evidently one for the abatement of a public nuisance. The bill alleges that the complainant has an interest different from that of the general public. This is an averment essential in a bill by an. individual for the abatement of. a public nuisance, but it is altogether unnecessary in a bill to- abate a private nuisance.

While the bill avers that the complainant is the owner of a lot which abuts on said alley, and upon which is located its freight depot, still, one of the main objects of the bill, if not its principal object, in removing the alleged obstruction in the private alley way, is to open up the same to afford free passage to persons going to and from the union passenger station, through which the complainant railroad company and other roads operate many trains daily. The allegations of the bill, we think, show that the real purpose of 'the complainant is to, have the alley opened for the use of the public in approaching the union passenger station, which is located upon a lot not abutting on said alley, but is wholly separate and disconnected.

The easement, in question is one appurtenant to property abutting on the alley, the benefits of which are limited to the uses of abutting property owners as such. “One having a right of way appurtenant to certain land cannot use it for the benefit of other land.” — Davenport v. Lamson. 21 Pick. 72. “If a man have a private way to a close, he must not enlarge it to other purposes.” — Albert v. Thomas, 78 Md. 189. “Private ways are confined in their use to the purposes for which thev are granted, and cannot-be extended by the-grantees. When intended to give access only to particular premises, they cannot be used thereby to reach other lands. Where one has a right of way to a three-acre', close, he cannot use it to pass over such close from or to closes beyond, and is a trespasser if he enters upon the three-acre close for such pui’pose.” — Greene v. Canny, 137 Mass. 64; Redemptorists v. Wenig, 79 Md. 348; Hoosier Stone Co. v. Malott, 130 Ind. 21. See also Goddard’s Law of Easements, 321, 324.

We think the demurrer sufficiently raised the above questions, and the court erred in overruling- tliel same.

The rule as to the office of a motion to dismiss a bill for want of equity was laid down in the case of Blackburn v. Fitzgerald, et al., 130 Ala. 584, following the principle stated in Seals v. Robinson & Co., 75 Ala. 368. If equity is apparent on the face of the bill from the facts stated, though such facts be illy pleaded and for that reason rendering the bill demurrable, on motion to dismiss for want of equity, the same will be considered as amended as to'such defective pleading, leaving the respondent to his remedy by demurrer. In accordance with the above rule the motion to dismiss the bill for want of equitv was properlv overruled. See also Gardner v. Knight, 124 Ala. 273.

For the error in overruling the demurrer, the decree will be reversed, and one will be here rendered sustaining the demurrer.

Reversed and rendered.