55 So. 864 | Ala. | 1911
Lead Opinion
Complainants seek an injunction for the protection of an alleged right of way over and through an alley at one time in use between their property and that of the defendant. By its cross-bill the defendant claims to own the soil of the alley in fee, unincumbered by any servitude, and would have the court make a quietus of complainants’ claim of right. For many years the alley in question opened into Royal street, between St. Anthony and St. Louis streets, in
1. The early records bearing upon the title in question are imperfect, and the measurements recited in the conveyances shown are manifestly inaccurate. We consider the case on the evidence at hand. Complainants are in undisputed posséssion of a lot measuring 82 feet on Royal street south from St. Anthony. Except for their use of the alley in common with those under whom the defendant claims, to which we will refer later, neither the complainants nor their predecessors in title are shown to have ever had a possession extending south- of the line 82 feet south from S-t. Anthony street. Prom 1816 to 1835 the various deeds which: appear in their chain of title described their lot as fronting 72 feet on Royal street and bounded on the south by lands
I his, on the principle that, in the description of the boundaries of land conveyed, monuments, whether natural objects or artificial marks, are allowed to dominate courses and distances. — Crampton v. Prince, 83 Ala. 250, 3 South. 519, 3 Am. St. Rep. 718. But, as was said in Miller v. Cullum, 4 Ala. 576: “This, rule is not without its exceptions. These are to be ascertained by a reference to the reason or principle of the rule itself. —Ratione cessante, ipsa lex cessat. Thus, where, by giving to monuments a controlling influence, absurd consequences would ensue, or where it is obvious that courses and distances furnish the most certain guides to the locations and quantity of the land, the latter should be followed.” “What is most material and most certain in a description shall prevail over that which is less material and less certain.” — Jackson v. Moore, 6 Cow. (N. Y.) 711. It has been shown that, if the deeds under which McDermott and English claimed be taken as conveying only such property as they describe by frontage in foot-measure, they fail to account for about 40 feet of the square, and that in this twilight zone lies the alley in question. Defendant has undertaken to account for this part of the square by introducing a quitclaim from one Vecque of a lot on the west side of Royal street, between St. Louis and St. Anthony, “fronting on Royal street one hundred feet or thereabouts, be the same more or less,” and bounded on the north by property formerly belonging to George J. S. Walker, and on the south by the property of English then occupied by him as a dwelling. This quitclaim was executed in 1836, and contained a recital that English was then in possession; It has been noted also that the Walker lot, when he came to make title, was described as having a
But there is no evidence of actual possession of any part of the defendant’s property at that time, nor can the recitals of the quitclaim bind the complainants or their predecessors who were strangers to it.
Now complainants’ contention is that Judson’s deed to Norris and Hunt, being first in point of time, fixed defendant’s line at 127 feet from St. Louis street on the theory of Crampton v. Prince, supra. But the deed to Gannard was executed after the deed to Norris and Hunt, so that neither the latter, nor their successors in interest, are to be estopped by it. It derogated nothing from any right, title, interest, or possession they may have had at the time or acquired subsequently. Moreover, Judson’s deed to Gannard did not- describe the 72-foot lot as hounded on the south by property which the grantor had before that conveyed to Norris; but the lot is described as bounded on the south by lands then belonging to Norris. It is- apparent therefore that the meaning of this description, and the true location of the line to which the grantor referred, depended upon matters of fact. Non constat, the land proximately south of complainants’-72-foot line did at that date he-
As for the lots in the rear, complainants’ fronting on St. Anthony street and defendant’s on St. Louis, and Avhich are separated by this same alley, complainants hold under deeds as early as 1840 describing their lot as running south from St. Anthony street 82 feet, and bounded on the south by the land of English. Defendant, on the other side, claims under deeds dated as early as 1834 describing its property as running north 175 feet from St. Louis street. So, then, if the case were to be determined on the muniments of title antedating the time when the evidence sIioavs anything in respect to actual possession, it would seem proper to hold that complainants have failed to sustain the burden of proof which they assumed when they alleged their ownership of the soil of the alley.
Consideration of the title deeds of later date and of the evidence touching the origin and use of the alley lead to a like conclusion. As we have already said, complainants have not shown at any time any possession south of their lot as now defined, except such possession as Avent Avith the use of the alley as a passageway.
On the other hand, defendant has shown, in those under whom it claims, actual possession since 1850, or thereabouts, under a color of title extending approxi
Official records show that about 1848 one Troost was employed by the city of Mobile to lay out a map of the city. A copy of so much of this map as shows the block containing the property in controversy was introduced in evidence. This map was hearsay, hut it ivas an ancient document and came from a proper custody. It was competent to show boundary lines of private ownership. — 1 Greenl. Ev. (16th Ed.) § 140a; Taylor v. Fomby, 116 Ala. 621, 22 South. 910, 67. Am. St. Rep. 149; Boardman v. Reed, 6 Pet. 328, 8 L. Ed. 415; Jones on Ev. § 308.
This map shows the McDermott lot as fronting 82 feet and 10 inches on Royal street next to St. Anthony and as improved by a brick building of 1% stories. It shows the English property as fronting 159 feet and 1 inch on Royal street and as improved by two frame dwellings. It shows the rear part of the last-named property as divided into four lots of 28 feet, 6 inches, each, fronting on St. Louis street and improved by brick dwellings. It shows no alley opening on Royal street, though the property lines indicate that an alley had been laid off on the rear of the English lots which fronted on St. Louis street. From other sources we learn that, from 1852, a.t the latest the McDermott lot was used as a slave mart -and was improved in a way which that use would probably suggest. A number of buildings were distributed about over the rear of the lot. The entire property to the rear of the building on Royal street was inclosed by a 15-foot brick wall. Complainants brought testimony which tended to show that
The first claim, on the part of those to whom the complainants have succeeded, that the lots north of the alley had a greater frontage than 72 feet in the direction of Royal street, is to be found in the deed of the master in chancery to McDermott in 1884. This deed is of the rear lot, and calls for a depth of 85.2 feet; but another and dominant description is that it extends to a point on an alley “and thence eastwardly along the north boundary line of said alley.” That and several subsequent deeds giving 85 feet as the south and north dimension of the lot, to the extent they overlaid property belonging to defendant and in its possession, were mere pieces of waste paper.
In 1859 the administrator of the elder English sold, under the orders of the probate court, to John D. Rag-land property described as follows: “That lot or parcel of land situate on the west side of Royal street between St. Louis and St. Anthony street in the city of Mobile, commencing at a point at the northwest corner
Complainants contend that the descriptions of the deed to Bagland must be taken as a recognition of their ownership to the center of the alley, seeming to attach importance to the expression “in an alley.” It would seem to be enough to say that the complainants are not parties to the English deeds and take nothing by them. They are in a position which demands that they make good their claim on its own merits, rather than on the weakness of the adverse claim. The argument is otherwise faulty, in that it begs the question. It assumes the right claimed in order to give the desired operation to the deeds. It is not claimed that in 1859 McDermott had acquired a.n easement by adverse user. As we think we have shown, he had no title to the soil. The only interest in the alley, or its maintenance as such, was
Where a way, established as of legal right, divides the properties of two owners, the presumption is that each has contributed the land for the way in equal parts, and a conveyance of an abutting ownership carries a fee to the center of the way. But where, as in the present case, the way has been laid out entirely upon the land on one side of the property line, a subsequent grant by the owner must be deemed to comprehend the fee in the whole way, upon the same principle that carries the fee to the center in other cases. It results that the several conveyances, by which defendant acquired title to all the lots for the benefit of which the easement was reserved or created in the beginning, vested also in it the land covered by the easement. — Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 611; Gould v. Eastern Railroad, 142 Mass. 85, 7 N. E. 543;
2. Much of what has been already said bears upon the question raised by complainants’ claim of an easement by adverse user. There was no user of any character by the predecessors of complainants prior to 1866, nor subsequent to 1892. From 1892 to 1895 the premises were vacant. From 1895 to until shortly before bill filed the premises on both sides were in the possession of defendant. “The time for acquiring an easement by prescription does not run while the dominant and servient estates are in the occupation of the same person.” —Jones on Easements, § 166. So, then, complainants’ right must have been acquired, if at all, in the period from 1866 to 1892. The title to the soil was with defendant. The user was common. Complainants’ user was therefore presumptively permissive; and so remained- until it was brought home to defendant or its predecessors that it was claimed as a right and without regard to their wishes. It must then have been continuous — that is, without such interruptions as would indicate an abandonment — for at least a period which would pass title to land by adverse possession. — Jesse French Co. v. Forbes, 129 Ala. 471, 29 South. 683, 87 Am. St. Rep. 71; Trump v. McDonnell, 120 Ala. 200, 24 South. 353. But in the view we take of the testimony there is but one circumstance which indicates an assertion of right. On one occasion a tenant on complainants’ lot complained that some poles, which had been piled in the alley, were obstructing the way. Thereupon the agent for the then owner went to Rubira, president of the Electric Company then the owner of defendant’s lot, “in person and told him that he must move them, and he did so.” This could not have been before 1885; it may have been as late as 1890. Rubira
Our conclusion is that the chancellor’s decree ought to be affirmed.
Affirmed.
Rehearing
On Rehearing.
On the original submission, appellants called attention to the fact that Theo. K. Jackson, defendant’s agent, had in 1906 joined in a petition to the board of public works requesting that one-half of the cost of paving Royal street in front of the alley be taxed against the defendant, and that in a lease taken by defendant from complainants in 1907 the complainants’ property was described as “the property owned by them at the southwest corner of Royal and St. Anthony street, and about 83 feet on Roj^al street, to a joint alley used by the parties of the first and second part jointly.” These facts were referred to in appellants’ brief as going to support their contention that appellee and its predecessors had knowledge of appellants’ alleged adverse user of the alley under claim of right and had acquiesced in that use and claim. There was no suggestion that the facts referred to constituted a sufficient ground for decreeing a title by estoppel in the complainants. It then seemed, and now seems, that in view of the previous relations of the parties to this alleyway, which relations were stated in the opinion, the date of these transactions, their detachment from appellants’ previous assertion of right by appellee’s intervening possession, was enough to show that they were in
As for the recital of the lease, it is not even now insisted upon as an estoppel, though it is woven into an argument looking to the establishment of an estoppel. It is still specifically referred to as a mere admission,- and that it is an admission of a kind may be conceded. Its effect in that aspect has been considered. That it cannot operate to convey title by estoppel seems plain. At best it could operate only as a conveyance of appellants’ right to the use of the alleyway during the term of the lease. But appellee was not taking a conveyance of a right to use the alley. That right was. and is undisputed. The recital that the alley was a joint alley was wholly unnecessary to the lease and did not operate as an estoppel against the grantee to assert its own su
In other respects the application is a restatement of propositions which have been heretofore considered. We are satisfied with the conclusion then reached.
Application denied.
