Olsen v. Noble

• Decision Date: 10 June 1953
• Docket Number: 18207,18201,18208,Nos. 18200,s. 18200
• Citation: 76 S.E.2d 775,209 Ga. 899
• Parties: OLSEN et al. v. NOBLE et al. NOBLE et al. v. OLSEN et al. OLSEN et al. v. PATTERSON et al. PATTERSON et al. v. OLSEN et al.
• Court: Georgia Supreme Court

Page 775

76 S.E.2d 775

209 Ga. 899

OLSEN et al. v. NOBLE et al.

NOBLE et al. v. OLSEN et al.

OLSEN et al. v. PATTERSON et al.

PATTERSON et al. v. OLSEN et al.

Nos. 18200, 18207, 18201, 18208.

Supreme Court of Georgia.

June 10, 1953.

Rehearing Denied July 15, 1953.

Syllabus by the Court.

1. An independent adverse use by a tenant of an alleged private way over the land of another, not purporting to be covered by the terms of the lease or based upon any authorization purporting to be conferred by the landlord, does not inure to the benefit of the landlord. The evidence being insufficient to show that the predecessors in title of the defendant Olsens adversely used the property of the plaintiffs as a private way under a claim of right, and the Olsens' use being for a period of less than seven years, it was not error for the court, to direct a verdict in favor of the plaintiffs.

2. The judgments overruling the defendants' motions for new trial being affirmed, the plaintiffs' cross-bills of exceptions will be dismissed.

Heyman & Abram, Atlanta, for plaintiffs in error.

Haas, Hurt, & Peek, J. Corbett Peek, Jr., Mitchell & Mitchell, Atlanta, for defendants in error.

ALMAND, Justice.

Fred W. Patterson and Mrs. Claud Patterson Noble, as tenants in common of a lot of land located at the corner of West Peachtree and Simpson Streets in the City of Atlanta, simultaneously instituted separate actions against Otto A. Olsen and Mrs. Signa Olsen, who were the owners of the property just south of the Patterson-Noble property, on which was located an apartment hotel, and against H. A. Stow, a tenant of the Olsens, wherein the plaintiffs sought to enjoin the defendants from trespassing on their property, and to restrain the Olsens from prosecuting two pending actions in the Fulton Court of Ordinary, whereby they sought to require the plaintiffs to remove an obstruction from an alleged private way concededly being on the property of the plaintiffs. The Olsens filed their answers and cross-actions in both cases, in which they contended that they had a prescriptive easement over a private way approximately 11 feet in width, just north of their boundary line, which ran the whole length of their lot, from West Peachtree Street to an alley in the rear of the properties of the plaintiffs and defendants, by reason of more than seven years' continuous use, with repairs, by them and their predecessors in title. They prayed for a decree declaring that they had acquired an easement in such way by prescription across the land of the plaintiffs. Certain demurrers filed by the plaintiffs to the answers and cross-bills were overruled, and exceptions pendente lite were separately filed. The two cases were tried jointly before a jury, and at the conclusion of the evidence the judge directed a verdict in favor of the plaintiffs in both cases, and decrees were entered. The defendants filed separate motions for new trial on the general grounds, and by amendment they complain that the court erred in directing verdicts for the plaintiffs, and that there was sufficient evidence to submit the case to the jury. These motions being overruled, the defendants filed their bills of exceptions in both cases to this court, and the plaintiffs filed cross-bills assigning error on their exceptions pendente lite.

These cases were argued as one case, and since the essential facts and respective contentions, in the main and cross-bills, are the same, and the evidence is the same, and the controlling questions of law are identical, they will be treated and decided as one case.

1. The main and controlling question is, was there sufficient evidence to authorize the jury to find that the predecessors in title of the defendant Olsens had adversely used, for more than one year and three months, the strip of land on the property of the plaintiffs as a private way, which adverse use the Olsens were entitled to tack onto the period of five years and nine months that they had adversely used the alleged private way? The facts in regard to this issue are: The property owned by the plaintiffs fronts 100 feet on West Peachtree Street and runs back westerly 120 feet to an alley, Simpson Street being on the north of the property of the plaintiffs. For many years the plaintiffs have leased this property, which was used as a used-car lot and has a small office on it. The defendants own and operate an apartment hotel on their lot, and part of the north wall of this building is constructed flush with the property of the plaintiffs. The strip of land of the plaintiffs in which the defendants claim an easement is approximately 11 feet in width, running from West Peachtree to a 10-foot alley. The evidence shows that there is an entrance to the Olsen property on West Peachtree Street, and to the rear of their building is a vacant lot with an entrance to the building from this lot, and that egress and ingress could be had by automobiles to the rear of the hotel property by way of Simpson Street and the 10-foot alley. The Olsens acquired possession of their property in November, 1943, by a warranty deed from the Massachusetts Mutual Life Insurance Company executed in July, 1943. There is no evidence which shows that in this conveyance any reference was made to the alleged private way, or to any rights conveyed in the land as to the use of this 11-foot strip. The Olsens have been in continuous possession of the property described in their deed since November, 1943. The insurance company acquired this property by deed under foreclosure in 1934, the hotel property at that time being occupied by Mrs. Maude E. Graham as a tenant or lessee of the owners, P. C. McDuffie and Municipal Investment Company, who owned it from 1923 to 1934. Mrs. Graham continued as a tenant until the time the Olsens bought the property and went into possession. The Olsens claim that, at the time they went into possession of the property in November, 1943, the 11-foot strip was being used, and had been used for more than three years, as a passageway by the occupants of the hotel, servants, and the public, by entering the property from West Peachtree Street by a recess door on the north side of the building adjacent to the plaintiffs' property, and also by entering from the alley in the rear of the hotel; that the service meters were on the north side of the building; and that the claimed alley was used by persons in reading the meters and making repairs to the building. The contention is that, though the Olsens themselves did not use the alley for a sufficient length of time to acquire a prescriptive easement, Mrs. Graham, while a tenant of the insurance company, did openly and continuously use the alleged way adversely for more than three years, and that this period of occupancy inured to the benefit of the owner of the hotel property; and when such period was added to the time it was used by the Olsens, the evidence was sufficient to authorize the jury to find that there had been more than seven years' adverse use of the property, and that the Olsens had a prescriptive easement to this way. Mrs. Graham testified that during the time she occupied the hotel property as a tenant of the insurance company, the strip of land was used in the same manner as testified to by the Olsens. She occupied the premises under written leases from the insurance company. Two of these leases were introduced in evidence, dated respectively June 3, 1940, and June 18, 1942. Both of these leases described the leased property as being a 'certain building, designated as 302, 304 and 306 West Peachtree Street and known as the Graham Hotel * * * with the appurtenances to be used for commercial hotel.' There are no references whatever in these leases as to the use of the property just north of the hotel line. P. C. McDuffie, who was the owner of the hotel property at the time it was first leased to Mrs. Graham, testified: that during the entire time he and his corporation, Municipal Investment Company, owned the property, there was no alley or passageway on the property immediately north of the hotel property which is now owned by the Olsens; that, at the time had leased the property to Mrs. Graham, he did not represent to her any right to use the property of the Pattersons as a way, and never authorized her to use that property, nor claimed any right to use it.

James T. Burns, for the plaintiffs, testified that, from the time the property was acquired in July, 1934, by the insurance company until it was sold to the Olsens in 1943, he was in charge of the properties of the company, and when the lease was made to Mrs. Graham in 1934, the company did not lease anything other than the property described in the lease, and at that time the company did not claim any right or title to any property not described in the deed of 1934 to the company, and from the time they acquired the property until the sale to the Olsens in 1943, the company did not claim any right to any property other than that described in that deed. He further testified: 'The Massachusetts Mutual Life Insurance Company did not at any time during that period claim any rights of way or pathways or the right to any alley running along and north of the northern boundary of this property on which...