Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471

Jesse French Piano & Organ Co. v. Forbes

129 Ala. 471 | Ala. | 1900

DOWDELL, J.

The complainant, a body corporate, seeks by its bill to enjoin the respondent from obstructing and preventing its enjoyment and use of an alleged easement which-it claims in a certain private alleyway over the respondent’s premises. To the original bill, and bill as amended, the defendant filed a sworn answer denying the allegations as to complainant’s claim or right over said alley, and moved to dissolve the temporary injunction which had been granted. The cause was heard on the bill and amended bill, the sworn answer of the defendant,and,withozit objection from either party, on affidavits being filed on behalf of complainant and respondent respectively. On the hearing, the chancellor rendered a decree dissolving the temporary injunction, and from this decree the present appeal is prosecuted.

The complainant predica tes its claim upon a title by prescription, growing Out of an adverse, user by itself and those; under whom it claims, in a private alleyway over defendant’s premises for a period of fifty years or more. It is averred in the bill that there is a party wall between complainant’s lot No. 28 and defendant’s lot No. 26, both of which front on Dexter avenue in the city of Montgomery, and extends back 60 feet, ancl that at this point, in the construction of defendant’s building, her wall was deflected onto her own lot No. 26, at right angles, a distance of five feet, and was thence built back parallel with complainant’s wall and the dividing line between said lots, thus making the alleged *476alleyway of five feet in width. The complainant’s building is a two-story structure, Avith a doorway opening from the lower story into said alley, and four windows below and five above, with swinging blinds 18 inches in width, attached to each window, also opening into said alley. The defendant has likewise a door and windows opening from her building into the alley. This alley was used as a foot passage-way by the occupants of both buildings, by means of which access was had to an alleged public alley in rear of complainant’s building, which abutted against defendant’s lot, and opened into one of the public streets of the city. It also appears that at the end of the private alley a gateway was built and maintained by the defendant, which opened into the alleged public alley. The use of said private alley as a footway,by the occupants of both buildings continued up to the year 1879, Avhen, as it clearly appears from the evidence, the right to its use as a passage was prevented and denied by the defendant to the occupants of lot No. 28, and since that time continuously for more than twenty years and down to and Avithin a short time before the filing of the present bill has been used exclusively by defendant and her tenants.

We think that there can be no doubt that under this state of facts, if the complainant or those under whom it claims ever had prior to the year 1879 an easement in said alley by prescription, such right or easement has been lost to the complainant by the tAventv years’ interruption and denial of its use and enjoyment. Even in case. of. an easement granted by deed, a non-user, coupled with a use on the. part of the owner of the servient, estate adversely for a period of time sufficient to create, the easement in the first instance, will destroy the right granted. — Washburn on Easements, 551.

But it is contended by the complainant that even if this be true, it still has a prescriptive right in the space or opening made by said alley between the Avails for the purpose of air and light, inasmuch as there has nevesr been during the period of fifty years and up to a short time before the filing of the ‘bill, any interruption or interference with the user by the complain*477ant or those under whom it claims of the swinging blinds to the windows, which is claimed by the ‘complainant to have 'been such an obstruction and trespass upon the land of the defendant as to call for a protest from the owner, and consequently constituted an adverse claim and user which ripened into a prescriptive title or right. That the English doctrine of ancient lights has no sanction in our jurisprudence is a principle too well settled to admit of controversy — Ward v. Neal, 37 Ala. 500, and cases there cited.

But it is, however, contended by appellant that while this may be conceded, the uninterrupted use of the swinging blinds, as described in the bill, for a period sufficient to create a title by prescription implies a covenant of enjoyment of the flow of air and light through the windows. We do not think this contention sound. Were these swinging blinds such as to obstruct the owner of the land in the use of the alley, or in a manner which called for a protest from the owner? We thihk not. It is conceded by appellant in argument that one window with swinging blinds would not neeess-sarily call for a protest from the owner of the land over which they swung. If not one, why should two or more, when it is not shown that it was hurtful or injurious to the owner.of the land? The opening and closing of the blinds for the purpose of letting in hr excluding the air and light is but a momentary act. The blinds when being opened and closed covered but momentarily only a small part of the space in the alley, and neither the averments of the bill, nor the evidence, show that they in anywise interrupted or interfered with the owner in a full and free use of the alley, 'which is shown to have been used as a foot passage-way.—Carrig v. Doe, 14 Gray 583.

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 easement by prescription is created only by an adverse use of the privilege, with the knowledge of the person against whom it is claimed, or by use so open, notorious, visible and uninterrupted that knowledge will be presumed, and exercised under *478a claim of right adverse to the owner and acquiesced in by him; and such adverse use must exist for a period equal at least to that prescribed by the statute of limitations for acquiring title to land by adverse possession. — Jones on Easements, § 1G4. No easement can be acquired when the use is by express of implied permission. — lb. §§ 179-180. The user or enjoyment of the right claimed, in order to become an easement by prescription, must have been adverse to the owner of the estate over which the easement is claimed, under a claim of right, exclusive, continuous and uninterrupted, and with the knowledge and acquiescence of the same. Steele v. Sullivan, 70 Ala. 589; 2 Wait’s Act. & Def., 693. One circumstance always considered is, whether the user is against the interest of the party suffering it, or injurious to him. There must be an invasion of the party’s right, for unless one loses something, the other gains nothing.—2 Wait’s Act. & Def., 694; Rountree v. Brantley, 34 Ala. 544, 552; Arnold v. Stevens, 41 Pick. 106. The presumption of a grant can never arise where all the circumstances are perfectly consistent with the non-existence of a grant.—Arnold v. Stevens, supra,; Ricard v. Williams, 7 Wheaton 109.

We think that under all the circumstances, and upon the evidence in this' case, in the use of the swinging-blinds there was no such adverse u-se of the alleyway in question as could ripen into a title by prescription. It is more in consonance with right and reason to presume that such user, when it does not -appear from the evidence to have been hurtful or injurious to the owner, was permissive. ■ We are of the opinion that the chancellor committed no error in dissolving- the injunction.

Let the decree be affirmed.

Tyson, J., dissenting.