The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1903-03-15

Reversed and remanded. opinion by
Tyson, j.
Overton, ct al, vs. Moseley-Bill in Equi-
ty for Injunetion-Appeal from the
Chancery Court of Madison.
l. Deed construction of when ease
ment not eonveyed.-A deed recited how
the land about to be conveyed became
vested in the grantor, of its sale at pub
lie sale and of the grantees purchase
thereat of two tracts. described as being
in the west half of section 49, containing
one hundred acres, more or less, and
"also strip of land in the east half of
said section, not to exceed one rod in
| width and of which the center line shall
| correspond with the center of the eX-
| tension on said east half of the ditch
running west across lot No. 3, nor to ex-
tend more than 100 rods beyond the west
! boundary line of said section 19, 1t being
| intended that the purchaser of said lot
| No. 5, his heirs and assigns. shall use
said strip for the sole purpose of en-
! abling the owner of said lot No. to Sc
cure a free flow of water through the
whole length of said ditch, and shall not
debar the owner of the lands adjoining
said ditch on the east half of said section
from building fences along or across said
ditch, nor bridges across the same in such
manner as will not prevent the purchaser
of lot No. from so using said strip as
to secure free flow of water through
the whole length of the ditch on said east
half of said section; also sixteen acres
describing another tracD. containing in
all one hundred and sixteen acres more
or less, at the price of $l740. This was
followed by recitals of compliance with
the terms of sale and the granting clause
whereby the property conveyed is mem
toned only as the land hereinbefore de-
scribed.' Held, that the deed did not
convey the soil of the strip but only
granted an easement for drainage over
| the strip mentioned. making dt an appur-
tenance of the land conveyed by said
| deed.
2. Same conveyance of fee; restriction
on use of land.-A mere restriction on the
use of the land imposed by the terms of
a deed will not prevent the passing of the
fee under clause appropriate for that
purpose.
3. same meaning of term land in
conveyance. Technically, the term
land" by which conveyed property is
! designated, applies to corporal property
only, but may when appearing to have
been used with such intention, include an
ncorporeal interest in land.
4. Equity pleading; easements.-An
averment In a bill that complainant owns
the land formerly owned by c. and de-
has adverse possession thereof for more
| than ten years. does. not necessarily i'm
port that complainant owns or has ac-
| quired by adverse possession an easement
| G had under his deed appurtenant to his
! lands and conveyed In the same deed
| with the lands.
| g. Same; averment of facts: prescrip-
| ton.--A bill seeking to establish a title to
] an easement by prescription must disclose
| by facts averred, rather than conclusions,
J that the user depended on has been adj
| verse to the landowner, and continuously
/ so, for at least ten years.
! 6. Easement; how created.-A reference
J In a deed of a servient tract to a right
! of drainage appurtenant to an adjoining
1 tract serves only to except and give no.
, tice of such right, and does not create
] the easement.
| Reversed and remanded. Opinion by
| Sharpe j.