McGill v. Miller
| Decision Date | 20 December 1926 |
| Docket Number | 58 |
| Citation | 288 S.W. 932,172 Ark. 390 |
| Parties | MCGILL v. MILLER |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.
Decree affirmed.
T. T Dickinson and S. L. White, for appellant.
Carmichael & Hendricks, for appellee.
OPINION
This litigation involves a controversy between appellants McGill and Todd on the one side and appellees Miller and Autry on the other side, concerning the right to use an alley between the several properties occupied by the parties in the city of Little Rock.
Appellee Miller is the owner of lot 3, block 2, of Marshall & Wolfe's Addition to the city of Little Rock, and appellants McGill and Todd and appellee Autry are the respective owners of portions of lots 4, 5 and 6 of block 2, in Marshall & Wolfe's Addition. The addition referred to was platted and filed prior to the year 1905 by the then owners, and a man named Booher was the owner or lots 4, 5 and 6, which now comprise the property of McGill, Todd and Autry. Each of these lots are 50x150 feet, and extend east and west, fronting on Wolfe Street. Lot 6 extends full length on Ninth Street on the south, and Booher divided all three of these lots so that the residences established thereon would front on Ninth Street instead of Wolfe.
On March 10, 1906, Booher conveyed to W. S. McCain 54 feet off the west end of lots 4, 5 and 6. He had, prior to that time, conveyed to other parties the other two portions of the lots, namely 48 feet off the east end, which is now the property of Autry, and 48 feet between the two above-mentioned lots, which is now the property of Todd. Booher's deed to McCain contained a stipulation that the conveyance was made "subject to an easement or right-of-way along the north side of lot 4, which easement or right-of-way is hereby reserved for the use of the owners of the remainder of said lot 4, said easement to be ten feet wide." There was no such reservation, however, in the deeds previously executed to other parties covering the other two lots. McCain subsequently reconveyed the property to Booher, but his deed did not carry the stipulation contained in the deed from Booher to him, and Booher subsequently conveyed the property to another party without such reservation, and McGill, in the year 1910, became the owner through mesne conveyances.
Lot 3, in block 2, owned by Miller, has never been subdivided; that lot runs east and west, and Miller's residence fronts on Wolfe Street. Booher built the residence now owned by McGill, and other parties built the residences on the lots now owned, respectively, by Todd and Autry. Todd purchased his property in 1913, and Autry purchased his a few years later. There is an open space of ten feet on the south end of lot 4, along the line of the McGill property and the Todd property, and this has been used as an alley, affording an entrance to each of these properties from Wolfe Street. Todd and Autry have no other means of entering their respective properties from the north or west side. Miller also has been using the open way as an entrance to his property. His use, however, was more limited, as the driveway into his property turns north across his property line a short distance from the mouth of the alley. Several years ago Miller built a stone wall about three feet high near the south line of his property and the north line of the alley, running from the line of the Autry property west to within a short distance of the mouth of the alley--to the point where he turns from the alley into his own property. It was developed by proof in this litigation that the stone wall built by Miller is not precisely on the line, and extends a short space over into the alley near the west end.
It appears from the testimony in this case that, when the residences were established on the properties now owned by McGill and Todd, the fences and barn were built on the line of this open way or alley so as to leave a space of ten feet along that way. The barn and the fences were destroyed many years ago, and the fences were rebuilt on the line, so as to leave an open way between the fences on the back end of the property occupied by McGill and Todd and the line of Miller's property across the alley. McGill has, within the last few years, built a garage fronting on Wolfe Street at the corner of the alley. Todd has a barn or garage on the rear end of his property, about four feet from the line of the alley. Mr. Autry's garage is situated on his property fronting the east end of the alley.
Shortly before the commencement of this action McGill attempted to place a fence across the mouth of the alley, and Todd also attempted to build a fence across his line. These fences shut up the alley completely and prevented its use by any one, and the present action was instituted in the chancery court of Pulaski County by Miller and Autry against McGill and Todd to prevent them from obstructing the alley. A temporary injunction was granted at the commencement of the action, requiring appellants to refrain from obstructing the alley during the pendency of the suit, and, on final hearing of the cause, the injunction was made perpetual. The court also in its decree required Miller to move back the west end of the wall constructed by him so that the same would be on a continuous straight line, beginning at the east end at the line of the Autry property. McGill and Todd prosecuted appeals, and Miller cross-appealed.
It is the contention of appellees that the way in controversy was left open and marked by the establishment of fences and buildings as an alley-way for the use of other owners of the property in the block and has been so used for a period of nineteen years, up to the commencement of this action, so that an easement has been acquired by limitation. Scott v. Dishough, 83 Ark. 369, 103 S.W. 1153.
It is the contention of appellant McGill that the use of the way was merely permissive and never ripened into an adverse right, and that he has the privilege of withdrawing the permission and obstructing the alley at any time it suits his...
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State v. McIlroy, 79-320
...such that the landowner would be presumed to know the usage was adverse. Weigel v. Cooper, 245 Ark. 912, 436 S.W.2d 85; McGill v. Miller, 172 Ark. 390, 288 S.W. 932; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281, 46 A.L.R.2d 1135. I think that it was shown by a clear preponderance o......
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...right. Id. at 446, 266 S.W.2d at 283. One of the cases discussed and quoted at length by the court in Fullenwider was McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926), a case factually similar to the one at bar. There, the court affirmed the chancellor's grant of a prescriptive easement ......
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...to appellees. Also, it is clear that a prescriptive easement cannot be acquired by the mere lapse of time. See McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). There must be some action by appellants that an adverse use and claim are being asserted. Owners Ass'n of Foxcroft Woods, Inc. ......
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...held, and no additional evidence was taken. Time alone will not suffice to transform permissive use into legal title. McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). There must be some circumstance in addition to length of use to show that the use was adverse, and it was appellee's bur......