ASHWORTH v. BROWN, 240 Ala. 164 (1940)
198 So. 135
2 Div. 162.Supreme Court of Alabama.
October 10, 1940.Page 165
Appeal from Circuit Court, Hale County; John Miller, Judge.
S.W. H. Williams, of Greensboro, and Reuben H. Wright and Ward W. McFarland, both of Tuscaloosa, for appellant.
The bill is grounded upon a continuing trespass and absence of adequate remedy at law. The averments of the bill not sufficient in this regard and it was subject to the demurrer. Hitt Lumber Co. v. Cullman Prop. Co., 189 Ala. 13, 66 So. 720; Deegan v. Neville, 127 Ala. 471, 29 So. 173, 85 Am.St.Rep. 137; 5 Pomeroy’s Eq.Jur., 2d Ed., p. 4344, ? 1914. Appellees having alleged in their bill that appellant was in possession of the property, they cannot maintain this bill. Birmingham Trust
Sav. Co. v. Mason, 222 Ala. 38, 130 So. 559. It was encumbent upon complainants to aver whether the church was a partnership, a corporation, an unincorporated association to the name under which some individual was carrying on. Moore v. Burns Co.,60 Ala. 269; So. Life Ins. Co. v. Roberts, 60 Ala. 431; Lanford v. Patton, Donegan Co., 44 Ala. 584; Simmons v. Titche Bros.,102 Ala. 317, 14 So. 786; Crook v. Rainer Hdw. Co., 210 Ala. 178,97 So. 635; 22 Ency.Pl. Pr., 242. The bill should aver the date when the alleged trespass was committed. Snedecor v. Pope, 143 Ala. 275, 39 So. 318; Code 1923, ? 9531 (form 28). Injunction will not lie when there is an adequate remedy at law. 12 Ala.Dig., Injunction, page 161, 16.
W. R. Withers, of Greensboro, for appellees.
The equity court will grant injunctive relief where the averments disclose a permanent injury to the substance of the estate which is irreparable. May v. Lowery, 214 Ala. 230,107 So. 67; Gulf Comp. Co. v. Harris Cortner Co., 158 Ala. 343,48 So. 477, 24 L.R.A., N.S., 399; Tidwell v. H. H. Hitt Lbr. Co., 198 Ala. 236, 73 So. 486, L.R.A. 1917C, 232. A continuing trespass will be enjoined by a court of equity. May v. Lowery, supra; Tidwell v. H. H. Hitt Lbr. Co., supra; Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262. The court having assumed jurisdiction for injunctive relief will retain the bill for all purposes necessary to complete determination and settlement of the matters involved, though they be purely of legal nature. May v. Lowery, supra; 21 C.J., 134, ?? 117, 118; Ala. T. N. R. Co. v. Aliceville Lbr. Co., 199 Ala. 391, 74 So. 441; Kimball v. Cunningham Hdw. Co., 197 Ala. 631, 73 So. 323; Alexander v. Letson, 232 Ala. 208, 167 So. 265. It is not necessary to aver possession to sustain a bill in equity when it contains other and independent grounds of equity jurisdiction. Daniel v. Stewart, 55 Ala. 278; Lockett v. Hunt,57 Ala. 198; Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528; Dunn v. Ponceler, 235 Ala. 269, 178 So. 40. The trustees were the proper parties to bring the suit. Brown v. Ashworth,237 Ala. 160, 185 So. 754; Silverstein v. First Nat. Bank, 231 Ala. 565,165 So. 827; Busbee v. Thomas, 175 Ala. 423, 57 So. 587. Authority of the trustees of the church to institute this suit cannot be collaterally attacked. Gaines v. Harvin, 19 Ala. 491.
Religious freedom is fundamental in this country. This is known of all men. It need merely to be announced when this right is invaded. Incident to this is the right of assembly for religious worship; to form religious societies with discipline and doctrines expressive of their religious convictions; to conduct religious services,Page 166
and generally to promote religious influences and enterprises among men.
To this end a spot of ground may be acquired, a building may be erected, both dedicated to religious uses. The right to their uninterrupted and continuous use as a place of worship, for preaching, teaching, and other religious activities, is an element of religious freedom. In protecting such properties from trespassers, outsiders who enter upon, dismantle, or otherwise deprive those entitled to worship there of the continuous use of such properties, the courts are safeguarding the right of religious freedom.
We write this to give emphasis to the fact that in such case there is something more than a mere trespass on private property; and that injunctive relief does not depend solely on continuous or recurrent trespasses destructive of private property rights as recognized in our decisions. No money standards can measure or redress such wrongs. The continuous and uninterrupted use of church property for the purpose to which it is dedicated is the right to be protected. An injunction putting a stop to such interference is a more adequate and complete remedy, to say nothing of removal of clouds on title, c. Gewin et al. v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Christian Church of Huntsville et al. v. Sommer et al., 149 Ala. 145,43 So. 8, 8 L.R.A., N.S., 1031, 123 Am. St.Rep. 27; Guin et al. v. Johnson et al., 230 Ala. 427, 161 So. 810; Manning et al. v. Yeager et al., 203 Ala. 185, 82 So. 435.
The bill, in this cause, alleges that complainants are members of and constitute a majority of the trustees of St. Paul Colored Methodist Episcopal Church, Greensboro, Alabama; that the church lot described in the bill and the church building thereon are the property of the local congregation, and was being regularly used as a place of worship at the time of the matters complained of.
The alleged canons of the church relating to the sale of church properties are set out. From these it appears that local church property is held by a board of trustees.
“The Trustees, with the consent of the Preacher in charge and the Quarterly Conference, shall have the power to sell any Church or parsonage property which has gone out of use or should be removed to another place, the proceeds of which shall be under the direction of the Quarterly Conference. * * * provided, that in no case shall any such trustees sell or mortgage any church property unless they are authorized by the Quarterly Conference, the Presiding Elder being present in person.”
It is alleged that defendant first acquired a deed purporting to convey the church lot, executed by persons not trustees or members of this church; that this deed gave a limited time for removal of the church building, and thereafter defendant obtained another deed from same parties purporting to convey the church building; that such deeds were not executed by actual or acting trustees of the church, that the approval of the sale by the quarterly conference was never obtained; that such deeds are null and void, were put on record, and are clouds upon title; that defendant has entered upon the premises, tortiously removed the benches, torn down the pulpit and some inside walls, and torn up some flooring, greatly damaging the building; that for more than forty years this church has been used as a place of worship, and was being so regularly used at the time respondent acquired his alleged deed; that defendant is interfering with the possession and use of said church; and has by his acts deprived complainants and the membership of the use of their church. These averments clearly disclose a case for equitable relief by injunction to prevent further interference with the use and enjoyment of the property for church purposes; and incidentally, have an accounting for the injuries done to the property.
Under the averments of the bill, the suit was properly brought in the name of the trustees and members of the church. The member has a personal right in his place of worship. A suit for the protection of this right, by injunctive relief against diversion to other uses by a stranger, may be brought, as this court has held, by church officials, or church members, or both. Morgan et al. v. Gabard et al., 176 Ala. 568, 58 So. 902; Manning et al. v. Yeager et al., 201 Ala. 599, 79 So. 19; Dunn et al. v. Ellisor, 225 Ala. 15, 141 So. 700, 706; 54 C.J. p. 79, ? 175.
There was no error in the decree overruling demurrers to the bill.
GARDNER, C. J., and FOSTER and LIVINGSTON, JJ., concur.Page 167