Jesse French Piano & Organ Co. v. Forbes

• Decision Date: 24 January 1901
• Citation: 129 Ala. 471,29 So. 683
• Court: Alabama Supreme Court
• Parties: JESSE FRENCH PIANO & ORGAN CO. v. FORBES ET AL.

29 So. 683

129 Ala. 471

JESSE FRENCH PIANO & ORGAN CO. v. FORBES ET AL.

Supreme Court of Alabama

January 24, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Bill by the Jesse French Piano & Organ Company against E. E. Forbes and T. F. Wing. Judgment for defendants, and plaintiff appeals. Affirmed.

It was averred in the bill that the complainant, the Jesse French Piano & Organ Company, had leased from the owner thereof a storehouse in the city of Montgomery, built upon a lot known as "No. 28," on the south side of Dexter avenue and that lot No. 26, which adjoined the complainant's leased premises on the west side, was owned by the defendant Teresa F. Wing, and had been leased by her to the defendant E. E. Forbes. The purpose of the bill was to restrain the defendants from erecting a wall along the east side of lot No. 26, which interfered with the alleged use by the complainant of the alleyway between the complainant's property and the building on lot No. 26, and which wall would obstruct the light and air enjoyed by complainant through windows opening upon said alleyway. The facts as averred in the bill are sufficiently stated in the opinion. Upon the filing of the bill a temporary injunction was issued. The defendants filed separate answers, each of which were sworn to, and they specifically denied that either the complainant its landlord, or those under whom it claims, had the right by grant, prescription, or otherwise to the use of the alleged alleyway; and in said answers they set out at length the ownership of the lot No. 26, and the fact that said alleyway had, for more than 20 years, been used exclusively by the owner of said building or the tenants occupying the same; and there was a motion made to dismiss the bill for the want of equity, and a separate motion made to dissolve the temporary injunction upon the denials of the answer. Upon the submission of the cause upon the motion the court overruled the motion to dismiss the bill for the want of equity, but granted the motion to dissolve the temporary injunction theretofore issued, and ordered accordingly. From this decree the complainant appeals, and assigns the rendition thereof as error.

Tyson J., dissenting.

Gunter & Gunter, for appellant.

Holloway & Holloway and W. L. Martin, for appellees.

DOWDELL J.

The complainant, a body corporate, seeks by its bill to enjoin the respondent from obstructing and preventing its enjoyment and use of an alleged easement which it claims in a certain private alleyway over the respondent's premises. To the original bill and bill as amended the defendant filed a sworn answer, denying the allegations as to complainant's claim or right over said alley, and moved to dissolve the temporary injunction which had been granted. The cause was heard on the bill and amended bill, the sworn answer of the defendant and, without objection from either party, on affidavits filed on behalf of complainant and respondent respectively. On the hearing the chancellor rendered a decree dissolving the temporary injunction, and from this decree the present appeal is prosecuted.

The complainant predicates its claim upon a title by prescription, growing out of an alleged adverse user by itself and those under whom it claims, in a private alleyway over defendant's premises for a period of 50 years or more. It is averred in the bill that there is a party wall between complainant's lot No. 28 and defendant's lot No. 26, both of which front on Dexter avenue, in the city of Montgomery, and extends back 60 feet, and that at this point in the construction of defendant's building, her wall was deflected onto her own lot, No. 26, at right angles, a distance of 5 feet, and was thence built back parallel with complainant's wall and the dividing line between said lots; thus making the alleged alleyway of 5 feet in width. The complainant's building is a two-story structure, with a doorway opening from the lower story into said alley, and four windows below and five above, with swinging blinds 18 inches in width attached to each window, also opening into said alley. The defendant has likewise a door and windows opening from her building into the alley. This alley was used as a foot passageway by the occupants of both buildings, by means of which access was had to an alleged public alley in the rear of complainant's building, which abutted against defendant's lot, and opened into one of the public streets of the city. It also appears that at the end of the private alley a gateway was built and maintained by the defendant, which opened into the alleged public alley. The use of said private alley as a footway by the occupants of both buildings continued up to the year 1879, when, as it clearly appears from the evidence, the right to its use as a...