Barker v. Mobile Elec. Co.

• Decision Date: 18 April 1911
• Citation: 55 So. 364,173 Ala. 28
• Parties: BARKER ET AL. v. MOBILE ELECTRIC CO.
• Court: Alabama Supreme Court

55 So. 364

173 Ala. 28

BARKER ET AL. v. MOBILE ELECTRIC CO.

Supreme Court of Alabama

April 18, 1911

On Rehearing, May 5, 1911.

On Rehearing.

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Prelate D. Barker and others against the Mobile Electric Company. From a decree for defendant, complainants appeal. Affirmed.

Gaillard & Mahorner and Gregory L. & H. T. Smith, for appellants.

L. H. &amp E. W. Faith, for appellee.

SAYRE J.

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 the city of Mobile. The square from which it issued had a front on the west side of Royal street of 242 feet, some inches more or less. The north line of this alley is 82 feet and 10 inches south from the south line of St. Anthony street, and its south line is approximately 140 feet north from the north line of St. Louis street. The alley is, or was during its use as such, 19 feet wide. Probably from a time prior to 1848--certainly from 1859, at the latest--and until 1892, this alley was precisely defined at its Royal street end by substantial buildings on either side which stood flush with the line of Royal street. The property to the rear on either hand was acquired from different sources, and the evidence as to that part of the alley differs somewhat from that which relates to the rights of the parties in respect to the part next to Royal street. We think on the whole that it lends weight to the defendant's case; but the mass of evidence is so great that we have avoided a detailed statement of the titles of the parties to the property attingent upon the alley towards the rear. The easement claimed is of value and consequence only as it may afford an approach to Royal street. From 1840 to about 1869 one McDermott owned and occupied the premises to the north now owned by complainants. English--there were two Englishes, father and son, who owned the property in succession, but for convenience we refer to them as English--under whom defendant claims, owned the property to the south on Royal street from 1835 to 1859, and that to the rear until 1868. The alley was defined by the erection of buildings on either side during the ownership of these parties. In 1892 the buildings on the property now claimed by complainants were condemned and destroyed by the municipal authorities. The English property having been acquired in the meantime by the Electric Light Company of Mobile, defendant's immediate predecessor in title, that company took also, in 1895, a lease of complainants' property from its then owner, so that, from that time until shortly before this bill was filed, the property on both sides of the alley was in one possession. Complainants state their case substantially as follows: That the soil of the alley at the time it was opened was owned by McDermott or jointly by McDermott and English; that McDermott and English each claimed the ownership of the alley or a part thereof, and opened it in mutual recognition of their respective rights to its use; or that, wholly apart from their alleged ownership of the soil, they have acquired an easement of passage by prescription. The case here stated concedes throughout defendant's right to the use of the alley. The evidence for complainants has been directed to the proof of two propositions: (1) That they own a part, if not the whole, of the soil of the alley; and (2) that for more than 20 years they were in the open, notorious, continuous, and adverse user of the easement claimed.

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 possession 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 St. Anthony street. From 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 of Thomas P. Norris and Louis Baudin. In a deed from George J. S. Walker to John Byrnes, dated February 9, 1835, the lot is described as fronting 82 feet on Royal street and bounded on the south by the property of English. A number of later conveyances, including that to McDermott in the year 1840, follow the description of the deed from Walker to Byrnes. In 1884 a deed described the lot as bounded on the south by an alley. In 1886 the City Railroad Company conveyed the lot at the corner of St. Anthony and Royal streets, fronting 85 feet on Royal, to Hannah Lazo. Its southern boundary is not described otherwise. Hannah Lazo, under the name of Canizas, conveyed to Tolbert by the same description in 1890. And so Tolbert to Jordan in the same year; Jordan to A. M. Blair in 1898; and A. M. Blair to F. G. Blair in 1903. The first effort to convey in terms a mere easement in the alley appears in a deed from F. G. Blair to A. M. Blair, dated March 26, 1904, in which the lot is described as fronting 84 feet on Royal street and bounded on the south by an alley. "This conveyance includes all grantor's interest in said alley." In 1904, April 4th, Blair and wife conveyed to complainants 85 feet, more or less, on Royal street, and "their right to use said alley, and whatever interest they may have therein." Having shown this much, complainants, in order to give to those descriptions in their early muniments of title which bound their lot on the south by the lands of Thomas P. Norris and Louis Baudin, and those which bound it by the property of English, a meaning which would extend their ownership beyond the point 82 feet south of St. Anthony street, undertake to show, in part at least, the right and title of defendant. They show by the recitals of deeds offered in evidence that in 1814 a Madame Baudin died seised and possessed of a lot on the corner of St. Louis and Royal streets described as fronting 127 feet on Royal. The title to this lot passed in separate parcels and through several persons, heirs of Madame Baudin, into one Judson in 1815. In 1827 Judson sold first the 50 feet on the corner of St. Louis to Thomas P. Norris, and, a few days later, to Thomas P. Norris and Jonathan Hunt 77 feet on Royal, described as bounded on the south by the lands of Thomas P. Norris and on the north by the lands of the grantor. This Judson appeared also among the predecessors in title of the complainants. In 1816, one Kennedy, who subsequently got a patent from the United States, had conveyed to Judson the lot on the corner of St. Anthony and Royal streets, fronting 72 feet on Royal, and bounded on the south by a lot then owned by the grantee. In 1828 Judson conveyed the lot to Victor Gannard, describing it as fronting 72 feet on Royal street and bounded on the south by lands belonging to Thomas P. Norris. In 1831 English acquired the 50 feet next to St. Louis street from Norris, and in 1835 he got a deed from Hunt and Norris of a lot fronting 77 feet on Royal street and described in part as bounded "on the north by lands belonging now or late to Lewis Judson, on the south by lands belonging to Thomas M. English." From these conveyances complainants hold that we must infer, not only that Judson owned in his day the entire front on Royal street between St. Anthony and St. Louis, but that the deeds by which he disposed of designated frontages aggregating 199 feet on Royal street, 127 to Norris and Hunt, 72 to Gannard, must by reason of the further descriptions referring to the ownership of adjacent property, be held to have disposed of the entire frontage of 240 feet; and not only so, but that the effect of these conveyances was to fix the line between the two properties at a point 127 feet from St. Louis street, thus allowing complainants' title to far overlay the soil of the alley in question.

This 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 So. 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 location 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...