Opinion
6 Div. 590.
February 22, 1940. Rehearing Granted April 11, 1940.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
W. J. Wynn and John S. Foster, both of Birmingham, for appellants.
A bill seeking an injunction against a trespass on real estate is demurrable where complainant fails to allege the nature of his title to the real estate. Brewer v. Avinger, 208 Ala. 411, 94 So. 590; Fowler v. Alabama I. S. Co., 164 Ala. 414, 51 So. 393; Steiner v. Berney, 130 Ala. 289, 30 So. 570; Tyler v. Jewett, 82 Ala. 93, 2 So. 905; McGuire v. Van Pelt, 55 Ala. 344. The maintenance of a fresh water pipe constitutes drainage, and is embraced within the term public drainage purpose. Adirondack P. L. Corp. v. Little Falls, 148 Misc. 191, 265 N.Y.S. 567; Smouse v. K. C. So. R. Co., 129 Kan. 176, 282 P. 183; Atkinson v. Pine Bluff, 190 Ark. 65, 76 S.W.2d 982. Equity does not assume jurisdiction to enjoin trespass where the title of the party complaining is not clear, and where the whole controversy resolves itself into a dispute as to the title. Boulo v. New Orleans, M. T. R. Co., 55 Ala. 480; East W. R. Co. v. E. Tennessee V. G. R. Co., 75 Ala. 275; Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262. A bill for injunction is without equity where it affirmatively appears from the bill that complainant observed a public corporation constructing a canal on a right of way legally acquired against his property without protest for several months that such corporation constructing such canal was constructing it 2 feet outside of a 40 foot right of way. Western Union Tel. Co. v. Judkins, 75 Ala. 428.
Amzi G. Barber, Hugh Barber, and W. C. Barber, all of Birmingham for appellee.
If a bill shows equity in either of several alternatives it is sufficient. Cox v. Parker, 212 Ala. 35, 101 So. 657. The bill was not demurrable as to that aspect dealing with establishment of a boundary line. Clarke v. Earnest, 224 Ala. 165, 139 So. 223. Allegations as to ownership of the property by complainant were sufficient. They follow the application for condemnation. The statute requires the applicant to state the purposes for which the land is sought to be condemned. Code 1923, §§ 7478, 7499. Appellant City had no right to use the land for a fresh water pipe line. The bill makes a case for injunctive relief. Mobile M. R. Co. v. Alabama M. R. Co., 123 Ala. 145, 26 So. 324; 18 Am.Jur. 1031, § 386.
The bill of complaint charges that the appellee was the "owner" of the land as does the condemnation proceeding of the appellant, made an exhibit to the bill of complaint. While the word "owner" is not a technical term, but one of wide application, yet when applied to land usually and prima facie refers to a fee simple title, not a qualified or limited estate. Phillips v. Hardenburg, 181 Mo. 463, 80 S.W. 891; Slater Trust Co. v. Randolph-Macon Coal Co., C.C., 166 F. 171; People v. Bennett Medical College, 248 Ill. 608, 94 N.E. 110, 140 Am.St.Rep. 237. The bill of complaint was not subject to the demurrer for failing to specify or particularize the source and character of complainant's title to the land.
The bill of complaint charges the city with departing from the power or rights acquired under the condemnation proceedings in that the power given was to dig, construct and maintain a drainage canal or storm water sewer and for public drainage purposes. While the respondents "have constructed and threatened to operate and maintain on the part of the said property described and set forth in Parcel Number One, said water line or pipe line for the purpose of conveying from said Roebuck Springs to said East Lake Park said fresh water" and "that such use was not within the purposes for which said land was condemned," the bill does not charge or show that this was not a partial method of drainage. In otherwise, it does not appear that the overflow from the Roebuck Springs did not pass on or over the land sought to be drained before it was diverted by the pipe in question. This feature of the bill was subject to the respondents' demurrer which the trial court should have sustained.
We think, however, that the bill of complaint contains equity as to the fixation of a disputed boundary under Sections 6439-6441 of the Code of 1923. The bill, in effect, charges a dispute between the parties as to the proper location, one claiming that it is located with the bounds of the condemned property, and the other claiming that the canal is located two feet beyond the northern boundary line of said property.
We are not impressed with the contention of appellants that the bill discloses, on its face, an estoppel. It may show that some little time was taken up in the construction of the canal, but there is no charge that the complainant, Reid, knowingly permitted the work to progress beyond the boundaries of the condemned land.
The trial court did not err in overruling the demurrer going to the equity of the bill or that feature seeking a fixation of the boundaries, but did err in not sustaining the demurrer to that part of the bill charging a departure from the right to drain by the discharge of the water by pipe line from the Roebuck Springs.
The decree of the circuit court is affirmed in part and reversed and remanded in part. Appellee to pay cost of appeal.
Affirmed in part and reversed and remanded in part.
THOMAS, BROWN, and KNIGHT, JJ., concur.
On Rehearing.
The second proposition discussed in the foregoing opinion was in response to the argument of appellants' counsel, but upon a closer examination of the record we fall to find a specific ground of demurrer testing this feature of the bill; and, as the case was reversed only in this respect, the rehearing is granted and the reversal in part is withdrawn and the case is affirmed, and appellants are taxed with the cost of the appeal.
Rehearing granted; judgment affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.