Hill v. Wing

• Decision Date: 02 April 1915
• Docket Number: 142
• Citation: 193 Ala. 312,69 So. 445
• Parties: HILL v. WING et al.
• Court: Alabama Supreme Court

69 So. 445

193 Ala. 312

HILL v. WING et al.

No. 142

Supreme Court of Alabama

April 2, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill for injunction by Theresa F. Wing and another against T.B Hill. Decree for complainants, and respondent appeals. Reversed, and decree rendered, dismissing the bill and dissolving the injunction.

W.S Thorington and Hill, Hill, Whiting & Stern, all of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellees.

MAYFIELD J.

Appellees as landlord and tenant, filed this bill against the appellant, to enjoin appellant from obstructing an alley. Appellee Mrs. Wing is the owner of a certain lot and store thereon, fronting 50 feet on Dexter avenue, in the city of Montgomery, and running back 160 feet at right angles with Dexter avenue and parallel with Perry street, but 100 feet west of the latter. The alley in question is 10 feet wide, fronting on Perry street and running back to said appellee's lot, which fronts on Dexter avenue. The alley runs east and west, and parallel with Dexter avenue, but 110 feet south thereof. Appellant owns property on both sides of the alley at the point of the obstruction. The case was finally decided in favor of appellees, complainants below, and the injunction was made perpetual. From the decree the respondent prosecutes this appeal.

The case was heard and submitted for final decree upon the bill, the answer, and a host of affidavits as to the nature, character, use, and ownership of the alley, together with the deeds of the parties to their respective lots, and the abstracts of title thereto, running back to the United States. The trial court found that the alley was not a public, but a private one, and that the complainants had acquired the right to use the alley by the rule of prescription or adverse user, and on this theory granted the relief prayed.

We are unable to agree with the trial court in all its findings, as well as in the conclusion reached. We do, however, agree with the trial court in many of its findings, notwithstanding we do not think the court reached the correct conclusion from the facts as found by the court. The trial court finds the following facts to exist, and as to which we concur:

"The respondent, Hill, owns the west twenty-five (25) feet of said lot No. seven (7) north and south of the alley, in connection with a Dexter avenue frontage, and according to his deed is entitled to the use of the alley.

"The alley itself, so far as the records show, has never been conveyed by its owners since about 1840, but the use of it has been recognized and conveyed by deed from successive owners of different parts of said lot No. seven (7) for about 75 years up to the present time.

"The complainant Wing has no record title to the alley, but claims the right to use the same by prescription and adverse user."

The court also found the following facts, which, in the main, we find to be correct, but which we think are materially qualified or explained by other facts which are practically without dispute:

"The evidence in this case shows beyond serious controversy: That the alley has been in existence for about 75 years. That the paper title to the land comprising the alley is not in any of the parties to this suit, nor is it shown to be in any of the parties owning parts of lot No. seven (7) north or south of the alley. That complainant owns that part of lot No. six (6) contiguous to the west end of said alley, and has owned the same since 1881. That complainant has used the alley since it was occupied by her and her husband as tenants in 1879, continuously and without interruption down to 1900, when it is alleged that one of the owners or tenants of a part of lot No. seven (7) caused a gate to be placed at the street entrance of the alley, and that she or her tenants used the alley notwithstanding the gate, which was taken down in six or seven years, up to the present time.

"That the sanitary drainage pipe from claimant's property is laid in the alley, and has been there for 15 to 18 years or more."

We are unable to find in this record anything which shows that the use which the appellees or their predecessors in title have made of the alley was adverse to the title, claim, or use of the appellant or any one of his predecessors in title. The evidence shows without dispute that the use which the appellees and their predecessors in title made of the alley was permissive, either by express permit or by tacit consent. The only acts of ownership or control ever exercised over the alley were by the appellant or his predecessor in title. While it is true, as found by the trial court, that it does not appear that the appellant has any paper title to the fee of the alley, it does appear that his predecessor in title did have the fee, that the use of the alley was expressly conveyed and warranted to him, and that there has never been any dedication of the alley to the public. If appellant owned the land on only one side of the alley, and complainant owned the land on the other, then a different question would be presented, and the rights of the parties would be different. The case of our own court, nearest in point, which we have examined, is that of Steele v. Sullivan, 70 Ala. 589. In that case it was said that a dedication can properly be made only to the public use; that a private right of way cannot be created by dedication.

It is conceded in this case that there is no public use, and no dedication to such use. The complainant's right, if any she has, is concluded to be private, and not a mere part of a public right. There is no claim that the town or city ever recognized or treated it as a public alley; in fact, the evidence rebuts any such possible inference, by showing that the city treated it as a private way, and declined to repair or keep it, but required respondent, appellant here, to keep it in repair. In the case cited above the following statement of the law applicable to the case then on trial is more apt in this case, and is we think conclusive, in the present state of the evidence, as shown by this record. It is there said:

"Where a right of way, or other easement, is claimed by private persons upon the principle of prescription, the user and enjoyment, as is universally held, must have been 'adverse to the owner of the estate from which the easement is claimed, under a claim of right, exclusive, continuous, and uninterrupted,' and with the actual or presumed knowledge of such owner. 2 Wait's Act. & Def. pp. 685, 693; Colvin v. Burnet, 17 Wend. (N.Y.) 564; Tracy v. Atherton, 36 Vt. 514. If the user is merely permissive, as existing by the toleration of the owner, and in subordination to or recognition of an implied license from him, the right will not mature into a title by prescription, but is revocable at pleasure. Bachelder v. Wakefield, 8 Cush. [ [Mass.] 243; Watkins v. Peck, 13 N.H. 360 ; Polly v. McCall, 37 Ala. 29. The application of these principles proves fatal to the complainant's claim in this case." Steele v. Sullivan, 70 Ala. 589.

It is immaterial that the respondent in this case showed no paper title to the fee of the alleyway. That cannot help complainant; she does not connect herself with that title. If there had been a dedication of this alley to the public, then the complainant could, and did, show that her rights and damages were different in kind and degree from those of the public, and she could have maintained the bill; but, as before shown, there was no evidence tending to show such a dedication. The complainant must rely on her private rights, and not on those of the public. In the case of Jesse French Co. v. Forbes et al., 129 Ala. 477, 478, 29 So. 683, 87 Am.St.Rep. 71, it is said:

"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 a 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, § 164. No easement can be acquired when the use is by express or implied permission. Id. §§ 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; Roundtree v. Brantley, 34 Ala. 544, 552[; arnold v. stevens, 24 pick. [ mass.] 106 . The presumption of a grant can never arise where all the circumstances are perfectly consistent with the nonexistence of a grant. Arnold v. Stevens, supra; Ricard v. Williams, 7 Wheat. 109 ."

There is no evidence that the complainant's user of this alley or the use of any of her predecessors in title, or that of their tenants, was adverse to the owner of the estate over which the easement is claimed. All the direct evidence--and all the evidence, except the unwarranted conclusions or opinions of some of...