Boullioun v. Constantine, 4-2786.
| Decision Date | 12 December 1932 |
| Docket Number | No. 4-2786.,4-2786. |
| Citation | 54 S.W.2d 986 |
| Parties | BOULLIOUN v. CONSTANTINE et al. |
| Court | Arkansas Supreme Court |
Isgrig & Morrow, of Little Rock, for appellant.
G. E. McCloud, of St. Louis, Mo., and Edw. B. Downie, of Little Rock, for appellees.
Block No. 17, Faust's addition to the city of Little Rock, is a square parcel of land bounded on the north by Sixth street, on the east by Summit, on the south by Seventh street, and on the west by Schiller. It is laid off in lots; lots Nos. 1, 2, and 3 comprising the northwest quarter of said block, lots Nos. 4, 5, and 6 the southwest quarter, lots Nos. 7, 8, and 9 the southeast quarter, and lots Nos. 10, 11, and 12 the northeast quarter. John D. Constantine owns and occupies the east 50 feet of lots 1, 2, and 3; P. W. Crawford is the owner of the east one hundred feet of lots 4, 5, and 6; W. H. Henson owns the west fifty feet of lots 7, 8, and 9, and the appellant, Boullioun, is the owner of the northeast quarter of said block, the same being lots 10, 11, and 12.
Many years ago Constantine, Crawford, and Henson established their respective residences on the property owned by them, Constantine's residence facing on Sixth street and Crawford's and Henson's facing on Seventh street. The lots on which these houses were erected were practically on a level with the streets upon which they faced, but afterward the grade of the streets was changed, and they were cut much lower than the lots, so that now, in order to reach the properties from Sixth or Seventh streets, a steep embankment must be ascended, making access by any vehicle quite difficult. Lots 10, 11, and 12 have had no structure erected thereon, and for all time have remained, and are now, vacant and uninclosed. When the grade of the streets was changed, the owners of the several residences mentioned began to enter their properties with their vehicles to the rear from Summit street on the east and across a part of the uninclosed northeast quarter of the said block.
At that time Mrs. W. S. Mitchell was the owner of the uninclosed portion of the block, and remained such until a short time ago, when the property was sold under the description of lots 10, 11, and 12, block 17, to George H. Boullioun. Shortly after this purchase he began to take steps to close the passageways across his property, which resulted in the bringing of this action by the adjoining owners who had been using the same, seeking to restrain Boullioun from interfering with their use of the right of way across his property. There was a decree adjudging to the appellees a right of way ten feet wide across the property, providing that it should be the south ten feet of lots 10, 11, and 12, but, as suggested by the appellees, it was evidently intended that the right of way should be the strip of land ten feet wide along the southern boundary of appellant's property from Summit street to the center of block 17.
The question as stated by the appellees is as follows: "Did the appellees have a right to appropriate for their own use the property of the appellant, and use the same for their convenience in going to their garages?" Appellees contend that the use of the property for passage across it was justified as a way of necessity, and that right has become vested in them under the general rule that, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for the full period of seven years, a right to the continued user thereof is acquired by prescription, even though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it. In support of this proposition, they rely upon the cases of Balmat v. City of Argenta, 123 Ark. 175, 184 S. W. 445, and McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739. It nowhere appears in the evidence that Boullioun or his grantor was also the grantor under whom the appellees hold title, and therefore, so far as they are concerned, appellant is a stranger to their title, and a private way of necessity cannot be claimed by them, as there can be no private way of necessity over the lands of a stranger. The rule is laid down by Chancellor Kent in his Commentaries in speaking of a way of necessity that "it is either created by express words or it is created by operation of law as incident to the grant, so that in both cases the grant is the foundation of the title"; and Washburn, in his Treatise on Real Property, says: "A way of necessity can only be raised out of land granted or reserved by...
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Castillo v. Tabet Lumber Co.
...1135. It is interesting to note that the Arkansas case distinguished the facts there present from those discussed in Boullioun v. Constantine, 186 Ark. 625, 54 S.W.2d 986, which is the identical case cited by our court in Hester v. Sawyers, supra, in support of the rule applicable to large ......
- Boullioun v. Constantine