Bonelli Bros. v. Blakemore

• Decision Date: 03 December 1888
• Citation: 5 So. 228,66 Miss. 136
• Court: Mississippi Supreme Court
• Parties: BONELLI BROS. v. FRANK T. BLAKEMORE ET AL

5 So. 228

66 Miss. 136

BONELLI BROS. v. FRANK T. BLAKEMORE ET AL

Supreme Court of Mississippi

December 3, 1888

FROM the chancery court of Warren county, HON. W. R. TRIGG Chancellor.

Decree for complainants below. Defendants appeal. The opinion states the case.

Decree reversed and bill dismissed.

Catchings & Dabney, for appellants.

1. Complainants cannot establish the right of way by parol testimony. If they can, what has become of the statute of frauds, and the doctrine of this court that exceptions will not be engrafted on it? The cases cited with reference to the dedication of public highways have no application. An easement is an interest in land and cannot be granted by parol. 2 Wash. on Real Prop. 27 and 28.

2. There is no sufficient proof of adverse holding or use, and certainly not for the length of time required to acquire the interest by limitation. The proof shows continued and adverse holding on the part of defendants, and not on the part of complainants.

3. The equitable doctrine that where one sells land to another he impliedly grants a way over his other land, if necessary to have access to the granted land, has no application here because the granted lot fronts on Washington street and the right of way is not essential or necessary to its enjoyment.

4. There is no force in the position of counsel that Emanuel, in the use of lot 93, passed over lot 91 and thereby fixed a servitude on the latter. He was the owner of both lots. Besides, the proof is insufficient on this point, and there is no allegation of the fact in the bill.

5. Complainants wholly fail to show any contract right, and they also fail to establish a claim by adverse holding.

If a right of way ever existed, defendants had no notice of it, by record or otherwise, and they are innocent purchasers.

The complainants' testimony shows permissive holding on the part of defendants.

We ask for a reversal and a decree here dismissing the bill.

McCabe & Anderson, for appellees.

1. While Emanuel was the owner of both lots, he burdened number 91 with an easement in favor of 93. This burden, by the use of 91, was open, notorious, visible, and obvious. When he conveyed 93 to Duff, Green & Co., they took it with the easement in the other lot, and this was recognized by all the parties.

Where the owner of land makes one part of it subservient to another by an alteration, which is obvious and permanent, and then conveys one of the parts, his grantee takes such part benefited, or burdened, as the case may be, by the easement which the alteration created. Kelly v. Dunning, 10 At. Rep. (N. J.) 276.

The usage subsequent to the conveyance by Emanuel and the conduct of all the parties shows conclusively the construction placed on the conveyance, and that the easement existed. U. S. v Applegate, 1 Sumner 492.

2. Prior to the purchase by Duff, Green & Co., Emanuel, who was owner of both lots, subtracted an easement from lot 91, which he added to 93. When he conveyed these lots, this fact was open, notorious, visible, and obvious, and was well known to both purchasers.

There was no restriction in the deed to Duff, Green & Co., and they took the easement just as if it had been specified.

Especially is this true, as the purchasers of the other lot knew of the existence of the easement and assented to such a construction of the conveyance.

We therefore, have an easement by implied grant.

3. If the court is of opinion that there is no written conveyance of the easement in the deeds referred to, then we contend, nevertheless, that the evidence conclusively shows that such a right did exist, and the court, after the great lapse of time, will presume that a written grant was made and has been lost or destroyed.

4. The evidence of a parol easement is overwhelming.

If it is held that there is no written grant, and the court will not presume one, on the facts the decree is right any way.

That a deed or writing is not necessary to the creation of a valid easement, see 1 How. (Miss.) 379; 55 Miss. 613; 2 Wash. R. Prop. 306-319; 2 Dill. on Mu. Cor,, § 494.

5. If wrong in all these propositions, then we claim that we have shown such possession as the law requires in case of easements, continued for ten years under a claim of right, and that we have acquired a title by prescription. Ryan v. By. Co., 62 Miss. 162.

6. Defendants are not innocent purchasers. The construction of the two buildings, the alley way, the arches, and the absence of doors in the building on the corner lot and other things distinctly visible, were sufficient to have put the parties on inquiry, and constituted notice of the easement. 2 Pom. Eq., § 600, note; Sandelin v. Baxter, 44 Am. R. 165.

OPINION

COOPER, J.

In the year 1849 one Emanuel became the owner of a part of square 258 in the city of Vicksburg, which square is bounded on the east by Washington street, and on the north by Grove street. His lot fronted on Washington street and extended back one hundred and three feet on Grove street. On this lot he erected two storehouses, each fronting on Washington street and extending back eighty-eight feet, leaving a vacant space in rear of the buildings of fifteen feet. The declivity from Washington street westward is so great that what is the basement of the buildings in front is above ground, forming the lower story in rear. The buildings are, therefore, three stories in rear, and two stories and a basement in front. One of these buildings extended along Grove street and there was a door in the side opening out on Grove street by which access was had to the lower story or cellar. This is designated as lot 91 in the pleadings and evidence. In the rear of the other building (93) there was a door leading from the first floor to the vacant space. In front there was in each building a stairway leading to the basement; the two buildings had one common hall. In 1859 Emanuel made contemporaneous conveyances, one to Duff, Green & Co,, of lot 93, the other to Cobb, Manlove & Co., of lot 91. The conveyances were of the lots by metes and bounds describing the land on which the respective buildings stood and the vacant space in rear of each, granting to each purchaser the lot and its "appurtenances."

Cobb &amp Manlove believed that by reason of the situation of the lot conveyed to Duff, Green & Co., its owners had a right of way across lot 91 to reach Grove street, and Duff, Green & Co. being under the same impression exercised the privilege of passing across said lot so long as the two firms occupied the buildings. In 1859 or 1860, each firm, desiring to enlarge its building, the second and third stories were extended back to the rear of the lot, but an archway was cut in the wall of building 91 where the vacant space opened out on Grove street, and a corresponding arch was also cut in the partition wall, the lower story not being extended in either building. Duff, Green & Co. still had access to the first or cellar floor, by driving drays, etc., through the archways to the rear of their building. In 1863 lot 91 was bought by one Barbour, who was examined as a witness and testified that at that time Duff, Green & Co., having engaged in a business that did not require the use of the cellar, made no attempt to use the way across lot 91, and that they set up no claim to a right so to do. Some time after this purchase and occupancy by Barber he built a stable in the alley way on his lot, the arched way on Grove street being used as the doorway to his stable. Things remained in this condition until 1871, when another occupant having moved into lot 93, with whom Barber was not on friendly terms, he closed up the archway in the partition walls by nailing plank across the same. After this, the appellant, Bonelli, became tenant of both buildings and tore out the stable erected by Barber and built another one which was partly on lot 91 and partly on lot 93. Bonelli has now become the owner of lot 91 and has torn down the stable erected on both lots by himself and nailed up the archway in the partition wall. Complainants, who are the owners of lot 93, exhibited the bill in this cause to enjoin him from obstructing the way which they claim to have across lot 91 to Grove street.

There is no distinct averment in the bill that the way claimed ever was used by Emanuel during his ownership of the property, but since a decision against complainants on this ground would probably result in an amendment of their bill, and since, in any event, they are not entitled to the relief asked, we deal with the cause as though the allegation of such use had been specifically made.

Complainants contend that a right of way exists, first, by implied grant in the conveyance from the common owner to Duff, Green & Co. or if this point be decided against them, then that Duff, Green & Co., under whom they claim, secured the right by parol from Cobb, Manlove & Co., and if mistaken in this, then they claim that the right has been acquired by...