Opinion
8 Div. 927.
June 1, 1939.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
McCord McCord, of Guntersville, for appellant.
Mack Killcrease, of Albertville, for appellee.
The bill of complaint is what might be termed a dragnet as it seeks to enjoin the taking of land and in the alternative damages for trespass quare clausum fregit and for flooding the complainant's land. Conceding, without deciding, the equity of the bill as there was no demurrer interposed, we have considered the evidence carefully without indulging a presumption in favor of the trial court as the evidence was not taken before him ore tenus and we think the complainant does not meet the burden of proof of establishing the acts and grievances set forth in the bill of complaint. On the other hand, considering the whole evidence it not only negatives said charges, but shows conclusively that the complainant sustained no substantial damages from what was done by the respondent's agents, but his property was enhanced in value by virtue of the acts or improvements made by said agents or servants. Moreover, the weight of the evidence shows consent or long acquiescence in the acts of respondent's agents in straightening and working the road. Indeed, the evidence shows a fit case for the application of the doctrine announced in the case of Forney v. Calhoun County, 84 Ala. 215, 4 So. 153.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.