Opinion
7 Div. 579.
June 8, 1939. Rehearing Denied June 29, 1939.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Knox, Acker Sterne and Fred L. Blackmon, all of Anniston, for appellant.
The bill does not show on its face a justiciable issue. Berman v. Wreck-A-Pair Bldg. Co., 236 Ala. 301, 182 So. 54; Teal v. Mixon, 233 Ala. 23, 169 So. 447. Complainant is not entitled to relief in equity so long as he has a plain and adequate remedy at law. Price v. Hall, 226 Ala. 372, 147 So. 156. Respondent is entitled to a trial by jury of the facts involved. Const. 1901, § 11; Gen.Acts 1935, p. 778, § 9; Berman v. Wreck-A-Pair Bldg. Co., supra.
Merrill Merrill and John D. Bibb, all of Anniston, for appellees.
Under Declaratory Judgment Act, to justify suit, there must be in existence an actual controversy. Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720; Teal v. Mixon, 233 Ala. 23, 169 So. 477; Tuscaloosa County v. Shamblin, 233 Ala. 6, 7, 169 So. 234; Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 295, 175 So. 269. A party must have a presently available remedy through existing forms of action before the court will refuse to take jurisdiction to render a declaratoy judgment. Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450; Berman v. Wreck-A-Pair Bldg. Co., supra; Bagwell v. Woodword Iron Co., 236 Ala. 668, 184 So. 692. Appellant is not entitled to a trial by jury of the issues involved in this case. Tuscaloosa County v. Shamblin, supra.
The manifest purpose and legal effect of the written agreement, made exhibit "A" to the bill supported by a valuable consideration, was to constitute and create the west 18 feet of the north wall of the Hughes and Christian brick store building a party-wall with all the incidents thereto, to continue as such as long as the building erected by Miller on his lot "stands." McMinn v. Karter, 116 Ala. 390, 22 So. 517; Id., 123 Ala. 502, 26 So. 649; 20 R.C.L. 1093, § 15.
The bill does not allege that the complainants claim and are asserting the legal right to tear down or demolish said wall, but at most allege a desire to do so. To quote the averments of the bill as amended: "That the building upon the lot of your orators has become of little or no value, and your orators have an opportunity to sell their said lot, provided they demolish the building now standing thereon, but that they can not sell their said lot to the person who has afforded them the opportunity to sell, as above set out, or to any other person, except at a much lower price, unless and until they demolish said building."
These averments fall far short of asserting a legal right to demolish said wall.
One may desire to destroy his neighbor's property because it affects the value of his own, but such desire is not tantamount to asserting a legal right to do so.
Our judgment is that the averments of the bill fall far short of presenting an actual bona fide justiciable controversy between the parties. The demurrer to the bill was well taken and the court erred in overruling it. Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450.
It does not appear from anything on the face of the bill that it can be amended so as to give it equity.
The decree of the circuit court is therefore reversed and one here rendered sustaining the demurrer and dismissing the bill.
Reversed and rendered.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.