Citation Numbers: 184 Ala. 583, 64 So. 153
Judges: Anderson, McClellan, Sayre, Somerville
Filed Date: 12/18/1913
Status: Precedential
Modified Date: 7/27/2022
— This action, by appellants against appellee, was originally and as amended stated in four counts, consecutively numbered. Count 1 was stricken
Tbe assignment of error predicated of tbe action of tbe court in overruling- tbe demurrer to special plea 2 is without merit. Tbe demurrer to tbe special plea contained three grounds, viz.: It is not averred that tbe road was ever established by order of tbe commissioners’ court] it is not averred that tbe road was a public road subject to be worked] and tbe third ground •merely reiterated tbe first ground. It is manifest none of tbe stated grounds were well taken. A public road may be establisbéd and become such, of course by prescription (Jones v. Bright, 140 Ala. 268, 37 South. 79), or by dedication (Moragne v. Gadsden, 170 Ala. 124, 54 South. 518), in addition to its establishment by order of tbe commissioners’ courts. Tbe plea embraced tbe three alternatives. Tbe sufficiency vel non of tbe averments of tbe character of tbe road, or of its averred ap
Under the pleading and the evidence it was a question for the jury whether there had been a dedication, or the investment of right in the public by prescription, of or to the way involved. There was no evidence that the way was a public road by virtue of the order of the commissioners’ court.
If it were assumed that Story as overseer was without lawful authority to enter and clear and ditch as he did, the matter of his good faith and honest intention was of the issue arising under count 3. — Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 South. 266; Glenn v. Adams, 129 Ala. 189, 29 South. 836. The alleged commission, as overseer on this road, delivered to him by the apportioner, was at least admissible under this feature of the issues. Whether, in the circumstances some of the evidence shows, it was taken or secured or acted under in good faith and with honest intention, was a matter for the jury to consider and determine. The objection to the admission in evidence of this paper did not seek to thus limit its effect; it went to the general admissibility of the paper. The court did not err in admitting the alleged commission. There was likewise no error in admitting the evidence (paper) of Nelson’s authority as apportioner. It was from or through him' the alleged commission to Story came.
Special charges 1 and 2, refused to plaintiffs, were abstract, for that, it was affirmatively proven that no order of the court, establishing this as a public road, was ever entered. The refusal of an abstract charge cannot be the basis for error.
Special charge 3, refused to plaintiffs, was properly refused under the issues tendered by count 3 — that for
There is no merit in the error assigned and urged in brief for appellants. We cannot consider any others. The judgment is affirmed.
Affirmed.