
    West v. Louisville & Nashville Railroad Company.
    
      Bill in Equity to abate the Obstruction of an AlleyWay.
    
    5. Alley-way; easement appurtenant to property abutting thereon; benefits thereof. — -Where the contract establishing an -easement in a private alley-way makes it appurtenant to property abutting on said alley-way, tbe benefits of such easement are limited to the uses of abutting property owners as such.
    2. Same; same; where owner can not maintain bill to abate obstructions. — The owner of a lot abutting on a private alley- ■ way can not maintain a bill against the owner of another lot abutting on said alley-way, for the purpose of compelling him to remove ,as a public nuisance an obstruction in said alley-way, in order that the alley may be opened for the use of the public in approaching a union passenger station which is located upon a lot which does not abut on said alley-way, but is wholly separate and disconnected therefrom.
    3. Equity pleading: when motion to dismiss bill for want of equity will be sustained. — A motion to dismiss a bill for want of equity is not the equivalent of a demurrer and is not appropriate to reach defects and insufficiencies in pleadings curable by amendment; and, therefore, a motion to dismiss a hill for the want of equity should be sustained only when admitting the facts apparent on tbe face of the bill, whether well or illy pleaded, the complainant is without right to equitable relief.
    Appeal from the City Court of Montgomery, in Equity.
    Heard before the Hon, A. D. Sayre.
    The hill in this case was filed by the Louisville & Nashville Nailroad Company- against the appellant, D. P. West. The facts averred in. the bill were as follows: The complainant is a railroad corporation engaged in the business of a common carrier in the county of Montgomery, State of Alabama, and is. the owner of a piece ’or parcel of land situated in Montgomery upon which is located its freight depot, and a portion of which is -clevoted to a private street. Said lot abuts- on Gilmer Alley, which alley runs from Tallapoosa street, parallel with Commerce street to a jirivate way used as a means of approaching the union passenger station in the city of Montgomery. Gilmer Alley was established by the then owners of the property on either side of it by a deed executed on December 26, 1888, which deed is made an exhibit to the hill. The complainant’s property which was included in said deed lies on the opposite side of Gilmer Alley from the side occupied by the building known as the Windsor Hotel. After the establishment of Gilmer Alley and after the recording of the deed establishing it, the defendant, D. P. West, became ’the owner of the building known, as the Windsor Hotel, which is on the opposite side of Gilmer Alley from the complainant’s property, and at the time West purchased, hel took with notice of the existence of said Gilmer Alley and of the contract by which it was made and laid off. West has for some years conducted the business of a hotel in said Windsor Hotel building. The union passenger station in the city of Montgomery, into’ which the complainant amid other railroads in the city of Montgomery operate many trains daily, is near the end of Gilmer Alley, and said alley, which isi 4-0 feet Avide, is -a .short, and expeditious route by which persons can go to and come from said union passenger station, and also, to the freight depot owned and used by the complainant for the purpose of receiving and delivering freight. The defendant West had erected in said Gilmer Alley, immediately adjoining and in the rear of said Windsor Hotel, an inclosure in which he had placed' and isi now operating a boiler and other machinery in said in closure. This inclosure or structure is about '60 feet long and 8 feet unde, ' and greatly obstructs the free passss-e over that, part of Gilmer Alley on which comnlainant’s property abuts. Said obstruction, causes “iniurn- an,] damage.to, complainant,, different and separate from that suffered by the public and is a. private nuisanee .and the damage thereby sustained is not susceptible to accurate ascertainment in money, and is constantly recurring from day to day.” Complainant has demanded of the defendant West that he'move.said obstruction from said alley, hut West has refused and still refuses to dó so.
    It was then averred in the hill that the complainant is informed by cojinsel and believes, and upon such information and belief states, that said 13. P. West has no right, to maintain said structure-in said alley, and complainant is entitled to have said .Gilmer Alley kept open for the passage of said freight and persons free from any obstructions throughout its entire length and width.
    The prayer of the hill is that a decree be rendered “commanding and requmng.said I). P. West to remove and abate said structure hereinabove described from said Gilmer AJley, and forever enjoining and restraining him from erecting any structure in said Gilmeir Alley, or from obstructing, the same, Avithout the consent of all holders, and owners of the property abutting on said Gilmer Alley.” There Aims also a prayer for general relief.
    The defendant West demurred to, the hill upon the folloAvi'ng grounds: 1. The bill shows that the only obstruction caused by1 said structure in'said alley is the obstruction of the alleged right of complainant to have said alley used for public purposes. 2. The hill fails! to-allege, as a predicate, for relief, that said alleged obstruction interfered Avitli complainant’s rights as owner of land abutting on said alley. 3. The bill alleges no injury to compiaiuant as an .abutting proprietor on said alley1'. 4. The bill alleges, as the only ground of complaint, the obstruction of tine public in the lisie of said alley, AAdneh it appears tiie public have no right to u.se the same. The) defendant also moved to dismiss the bill for the want, of equity.
    On the submission of the cause upon the demurrer and the motion to dismiss for the want of equity, there was a. decree rendered overruling both the demurrer and .the motion to dismiss for the Avanti of equity. From this decree the defendant appeals, and assigns the rendition thereof as error.
    
      A. A.‘Wiley and J. M. Chilton, for appellant,
    Oharles'P. Jones, contra,
    
    cited Ellis v. Academy, 120 ’ Pa. St. 608. ,
   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.  