McBryde v. Sayre

• Citation: 86 Ala. 458,5 So. 791
• Parties: MCBRYDE ET AL. v. SAYRE ET AL.
• Decision Date: 12 April 1889
• Court: Alabama Supreme Court

5 So. 791

86 Ala. 458

MCBRYDE ET AL. v. SAYRE ET AL.

Supreme Court of Alabama

April 12, 1889

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.

Bill for injunction, filed by Wade A. McBryde and others against C. L. Sayre and others. Decree for defendants, and complainants appeal.

Brickell, Semple & Gunter, for appellants.

Tompkins, London & Troy and S. F. Rice, for appellees.

STONE C.J.

In 1872, Mrs. C. S. McBryde, wife of W. A. McBryde, with her husband's consent and co-operation, exchanged with C. L Sayre and P. D. Sayre lot and store numbered 21 on Dexter avenue, then Market street, for lot 25, same street, each in the city of Montgomery, Ala. The latter paid to the former in the exchange, an agreed difference in values. The two stores thus exchanged were part of a block of four stores, three stories high, numbered respectively 21, 23, 25, and 27, the numbers rising in successive order from west to east. Store 23 belonged to Mary Sayre, now Mrs. Randolph, and store 27 belonged to W. D. Sayre. These owners are brothers and sisters, and the several properties came to them by succession from their father or mother,-the record does not inform us which. Before the devolution and division, in 1872, the entire block of buildings belonged to Mrs. Sayre, the mother, or the estate of P. D. Sayre, Sr., the deceased father. At the time of the division of the property and the accrual of the several rights of the children, the approach to the second stories of the stores was by flights of steps, having their entrance on the street,-one between 25 and 27, and the other between 21 and 23. The third story over 25 and 27 was one large hall, 90 by 48 feet, and known as "Concert Hall." To this floor there was, at that time, no access from the second floor of either 25 or 27, although there had once been a flight of stairs extending to it from the second floor, and in communication with the entrance from the street, between those two numbers. The entrance to this large hall, at the time of the division, was by the steps going up between 21 and 23, up to the second floor above them; thence by a second flight of stairs up to their third floor; thence across 23 on its third floor, and entering Concert Hall from the west. This had been the route of access for 15 years or more. It will be observed that this line of access, until it reached the third floor, was over the common dividing line between 21 and 23, and thence entirely across 23 until it reached Concert Hall. One of the written terms of exchange between Mrs. McBryde and her brothers was in the following language: "And the said Philemon and Calvin also give and grant to W. D. Sayre and the said Caroline McBryde, their heirs and assigns, a right of way as now provided and used from the steeet to the hall over the store of the said William and Caroline." C. L. Sayre became the sole owner of store 21 long before the alleged grievances were committed which gave rise to the present suit.

We feel justified in stating as the result of the whole testimony that from the time said mode of access of Concert Hall was established until 1886 the hall was kept to be let, and was let for public entertainments, such as concerts, dances, church bazars, small shows, and the like, with occasional public speakings. It was for some time used for giving dancing lessons, and for a time some use was made of it for a theater. This last use had ceased more than 10 years before 1872. During the entire time its use had been occasional, and it became less and less used. There was not much use of it from 1872 till 1886. In 1886 the hall and its uses were changed. It was cut up into four rooms, two large and two small ones, and these were let to societies, six or eight in number, composed in part of secret societies-trades unions-of mixed membership. The gross membership is testified to have been from 500 to 1,000, and holding meetings from 4 to 6 nights in the week; and frequently continuing there until a late hour in the night. Claiming that this changed use of the hall was a departure from the original use, and an abuse of the easement, alike in the number and character of the visitors, and in the frequency of their visits, greatly impairing the rental and real value of their property, and doing them great damage, the said C. L. Sayre, acting for himself and Mrs. Randolph, closed up the pass-way across 23, and thus cut off all access to Concert Hall by that route. The present bill is filed to have said pass-way opened, and to re-establish and preserve the said easement over the property of C. L. Sayre and Mrs. Randolph. This result is sought to be accomplished by injunction.

Complainants base their rights to relief- First, against C. L. Sayre, on the stipulation copied above from the written agreement of exchange; second, against each, on the ground that the property came to them from a common source, with its status and mode of access fixed upon it, and that the present owners received it and now hold it stamped with the same rights, uses, incumbrances, and disabilities that had been impressed upon it by the former owner. They rely on the following authorities in support of this contention: Washb. Easem. *48 et seq., *523 et seq.; Insurance Co. v. Patterson, 2 N.E. 188; Gallloway v. Bonesteel, 26 N.W. 262; Brakely v. Sharp, 10 N. J. Eq. 206; Bakeman v. Talbot, 88 Amer. Dec. 279, note. The third ground on which they claim a recovery is that they have had and enjoyed the open, continued, uninterrupted right of way, without a word of objection, for 14 years, and that this gives them a right by adverse or independent user. Gayetty v. Bethune, 14 Mass. 49; Sims v. Davis, 34 Amer. Dec. 581; 2 Wait, Act. & Def. 693.

The main answer relied on in bar of these several claims is the changed use to which defendants claim the easement has been perverted. Their contention is that the words "right of way as now provided and used" limit the use, both in quality and quantity, to...