Brewer v. Avinger

• Decision Date: 02 November 1922
• Docket Number: 3 Div. 568.
• Citation: 208 Ala. 411,94 So. 590
• Parties: BREWER v. AVINGER.
• Court: Alabama Supreme Court

94 So. 590

208 Ala. 411

BREWER v. AVINGER.

3 Div. 568.

Supreme Court of Alabama

November 2, 1922

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill by A. C. Avinger against Maude W. Brewer for injunction. From a decree overruling demurrers respondent appeals. Affirmed.

Steiner Crum & Weil, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

SOMERVILLE J.

It is a settled rule of construction that- "Where a deed describes the land as bounded on an alley, the grantee's title extends to the center line thereof, in the absence of an express intent to the contrary, and the intent of the grantor to withhold his interest in the alley will never be presumed." 9 Corp. Jur. 205, §§ 106, 107, and cases cited thereto.

But where the deed of conveyance makes no reference to an alley there is no authority for the proposition that the grantee acquires such an interest in fee, unless the description in the deed, by common usage and understanding, includes the alleyway.

The allegation of the bill that complainant acquired the fee to the center of the alley in question is by way of legal conclusion merely, and adds nothing to the equity of the bill; nor does the invalidity of that conclusion render the bill subject to demurrer either in whole or in part, if the facts alleged entitle complainant to the use of the alley as appurtenant to his lot, and to the protection of his rights therein by injunction, as against this respondent.

Under the showings of the bill, there is no question presented here as between the respective owners of a dominant and a servient estate; for here the owner of an entire tract has created two separate and distinct lots and tenements for residence purposes, and has separated them by a 12-foot alley, which she subjected in equal degree to the joint and several uses of the occupants of the respective lots, uses which were continuous and apparent. These lots and tenements were then contemporaneously devised by the owner to separate individuals, without any previous change in the status and uses of the alley; and that status and those uses have continued down to the present time.

If this alley were in fact a part of the premises designated as "number 15 Alabama street," the principles which govern as to the creation and enjoyment of easements in favor of dominant estates, and the subjection thereto of servient estates, would of course be called into action; and it may be noted, for the purpose of analogy only, that-

"Where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication." 19 Corp. Jur. 914, § 103.

This subject has been discussed quite fully by this court, with citation of authorities, in Walker v. Clifford, 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74, and Gaynor v. Bauer, 144 Ala. 448, 39 So. 749, 3 L. R. A. (N. S.) 1082. See, also, 9 R. C. L. 759, 760, 761, §§ 25 and 26.

As pointed out by those authorities, the implication of an easement in favor of the grantee of a dominant estate is supported by a reasonable necessity for its enjoyment; while a like implication against the grantee of a servient estate, in favor of the grantor, can be supported only by a strict or absolute necessity.

We think it is perfectly clear,...