69 So. 445 | Ala. | 1915
— Appellees, as landlord and tenant, filed this bill against the appellant, to enjoin appellant from obstructing an alley. Appellee Mrs. Wing is the owner of a certain lot and store, fronting 50 feet on Dexter avenue, in the city of Montgomery, and running back 160 feet at right angles with Dexter avenue and parallel with Perry street, but 100 feet west of the latter] The alley in question is 10 feet wide, fronting on Perry street and running back to said appellee’s lot, which fronts on Dexter avenue. The alley runs east and west, and parallels with Dexter avenue, but 110 feet south thereof. Appellant owns ' property ' on
The case was heard and submitted for final decree upon the bill, the answer, and a host of affidavits as to the nature, character, use, and ownership of the alley, together with the deeds of the parties to their respective lots, and the abstracts of title thereto, running back to the United States. The trial court found that the alley was not a public, but a private one, and that the complainants had acquired the right to use the alley by the rule of prescription or adverse user, and on this theory granted the relief prayed.
We are unable to agree with the trial court in all its findings, as well as in the conclusion reached. We do, however, agree Avith the trial court in many of its findings, notwithstanding we do not think the court reached the correct conclusion from the facts as found by the court. The trial court finds the following facts to exist, and as to which we concur: “The respondent Hill, owns the west twenty-five ,(25) feet of said lot (7) north and south of the alley, in connection with a Dexter avenue frontage, and according to his deed is entitled to the use of the alley.
“The alley itself, so far as the records show, has never been conveyed by its oAvners since about 1840, but the use of it has been recognized and conveyed by deed from successive owners of different parts of said lot No. seven (7) for about 75 years up to the present time.
“The complainant Wing has no record title to the alley, but claims the right to use the same by-prescription and adverse user.”
“That the sanitary drainage pipe from claimant’s property is laid in the alley, and has been there for 15 to 18 years or more.”
It is conceded in this case that there is no public use, and no dedication to such use. The complainant’s right, if any she has; is conceded to be private, and not a mere part of a public right. There is no claim that the town or city ever recognized or treated it as a public alley; in fact, the evidence rebuts any such possible inference, by showing that the city treated it as a private way, and declined to repair or keep it, but' required respondent, appellant here, to keep it in repair. In the’case cited above the following statement of the law applicable to the case then on trial is more apt in this case, and is we think conclusive, in the present state of the evidence, as shown by this record.- It' is there said: “Where a right of way, or other ’easement, is claimed by private persons upon the principle of prescription, the user and enjoyment, as is universally held, ’ must have been ‘adverse to the owner of the'estate from which the easement is claimed,
It is immaterial that the respondent in this case showed no paper title to the fee of the alleyway. That cannot help complainant; she does not connect herself with that title. If there had been a dedication of this alley to the public, then the complainant could, and did, show that her rights and damages were different in kind aud degree from those of the public, and she could have maintained the bill; but, as before shown, there was no evidence tending to show such a dedication. The complainant must rely on her private rights, and not on those of the public. In the case of Jesse French Co. v. Forbes et al., 129 Ala. 477, 478, 29 South. 683, 87 Am. St. Rep. 71, it is said: If the user be not exclusive, and not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such user is permissive, rather than adverse. An, casement by prescription is created Only by an adverse use of the privilege, with the knowledge of the pers.on against whom it is claimed,'or by use so open, notorious, visible, ancl uninter:
There is no evidence that the complainant’s user of this alley, or the use of any of her predecessors in title, or that of their tenants, was adverse to the owner of the estate over which the easement is claimed. All the direct evidence — and all the evidence, except the unwarranted conclusions or opinions of some of the affiants — shows that the use was permissive, sometimes express, and sometimes implied.
Mr. Jones, in his work on Easements, in speaking of private ways (sections 204, 205), says: “A private way is ‘the right of going over another man’s ground-.’ When it is an easement, it is a right which one has, as appurtenant to his land, to go to and from such land over the land of another by a defined route. It may be a footway or a carriageway, or both, or a way for cattle only. It may be a way for all purposes, or it may be limited to a single purpose. A mere personal privilege to go over the land of another is not an easement, but a way in gross. Such a way can be
“Parol evidence is' not admissible to prove a grant or reservation of a way which is not mentioned in the deed. Such evidence is not admissible to alter or vary the terms of the deed; it is not admissible to abate or- extend the terms of the deed. ' On the other hand when the right of-way is plainly conveyed or accepted by the terms of the deed, it is not competent to prove by parol that it was not the intention of the parties that it should be conveyed or accepted. An entry upon and a -continued occupation of land, with the use of a way as appurtenant thereto, under a warranty deed which purports to - convey the land and the right. of way, are some evidence of title to- the land, and of a right to use the way,- against one who shows no right to-interfere with the use.”
-The facts’ of this case, in some respects,, are very similiar to' the facts of: the case of McNeal v. Rebman & Co., 168 Pa. 109, 31 Atl. 1002, and- the decision in that-case-is well stated in a headnote-thereto, as-follows: ' “An owner -of 'land having-divided it into lots, conveyed several of the--lots, with the- right to the use of-an-alley lying to- the-east of-them.'- Subsequently he .conveyed- the fee-simple- title to the soil, of- the alley, •together with-a lot lying- to-- the west of the- alley,:re
It appeal’s without dispute that the respondent owns the land on both sides of this alley where it is obstructed, and that he acquired the right to use it by both grants, though there was no express grant of the fee to the alley in either conveyance; that no person claims to own the fee and it would be useless any one so long as the land is used as an alley. Without deciding whether the respondent has the fee to the alley (because a decision of this is not now necessary), we refer to the work of Jones on Easements (section 226, p. 188), where the following rule is stated, and authorities are cited: “Where one owning two parcels of land, with a passageway between them, sold one parcel bounding it upon the passageway, and afterwards sold the other parcel, bounding it on the passageway, ‘together with my right in common with said passageway,’ it was held that the first conveyance was a grant of the soil to the middle of the way, with a right of way in the opposite half of the passage, and that the
It should be borne in mind that the alley in question has no relation or connection with appellee’s lot, except by mere accident. This alley is located in the. very center of lot 7, and thus divides it into two equal parts, a north half and a south half. The alley was never located on any other lot or part thereof. It is therefore self-evident that it was located for the benefit and use of these parts of lot 7. These north and south halves of the lot have been cut into smaller lots, by running lines across north and south, and the alley is evidently for the use and benefit of these Avestern lots. Appellant now owns these extreme Avestern lots on both sides of the alley. His deeds, therefore, convey the right to use the alley. Appellee has no such right, claim, or title, nor was the alley made for the use or
In it insisted on^the application for a rehearing that appellant is a mere trespasser, and that, even if appellee be a mere licensee, or invitee, she may enjoin the trespass. If she acquired any legal right which she could enforce in a court of law or equity, this might be true; but she has no such right. She has no possession or control which can be trespassed against. She has at most a mere privilege or grace to use, which privilege or grace is granted in part by appellant; and as to appellee surely he is not a trespasser, whatever he may be as to those who have the legal title to the fee, or to a joint use, with appellant, of the easement. Appellee has not now, and has never had, any easement as to this alleyway; she has never had any possession or control,, or right to control, over the use thereof. So far as she, or her right, or property, is concerned, there can be no trespass by obstructing the alley. If she were in possession and control of the alley, though her possession and control were wrongful or unauthorized, a court of equity would protect her possession and control against a mere intruder or trespasser, who asserted no better right than appellee; but this is not the.case with which we are dealing. .
If appellee’s property had been a part of a lot which fronted on Perry street, and her grantors had sold off her lot from that part which actually fronts on the street, as is the case with a part of appellant’s lots, then she
The fact that complainant in this case has no easement in, to, or over the land or lot on which this alley exists, nor right thereto as a way of necessity, certainly prevents any relief from being awarded in this suit. It is unheard of that a plaintiff, Avho has no right, title, interest, claim, or demand in, to, or over a tract of land, can by injunction prevent one Avho has rights, titles, or interests in and to the land in question, from using such land- as he desires, if the use does not constitute a public nuisance, or a private nuisance as to the rights of such plaintiff. The defendant’s use may be wrongful, yet this gives no right of action to one who has no legal right in or to the premises so used.
We here repeat what we have said before: If this suit were by parties who had an "easement in, to-, or over the alley in question, jointly with the defendant or adversely to him, the case would be entirely different, and the decision might be different; but we fail to find any theory, after repeated readings of this record and of briefs of counsel, upon which these complainants are
A number of cases have reached this court where the complainant sought to enjoin the obstruction of alleyways, hallways, etc., and the injunction was denied in several cases where the complainant’s rights were much greater and more certain than those of complainants in this case. In some of these cases, the complainant did have an easement in the alley obstructed; yet the relief was denied. See McBride v. Sayre, 86 Ala. 458, 5 South. 791, 3 L. R. A. 861; Wharton v. Hannon, 101 Ala. 554, 14 South. 630, overruled on subsequent appeal 115 Ala. 518, 22 South. 287; Steele v. Sullivan, 70 Ala. 589. Mr. Joyce, in his recent work on Injunction, states as follows the principle we are applying: “The protection of easements and the prevention of nuisances often require the application of the same principles, and to entitle complainant to relief in either case, his right must be free from any substantial doubt.” Joyce Inj. 1017.
Reversed and rendered.