Robb & Rowley Theaters v. Arnold
| Decision Date | 18 March 1940 |
| Docket Number | No. 4-5787.,4-5787. |
| Parties | ROBB & ROWLEY THEATERS, Inc. v. ARNOLD et al. |
| Court | Arkansas Supreme Court |
Brickhouse & Brickhouse, of Little Rock, for appellant.
Henderson, Meek & Hall, E. Charles Eichenbaum, Beloit Taylor, House, Moses & Holmes, Eugene R. Warren, and Carmichael & Hendricks, all of Little Rock, for appellees.
Two of the appellees, Adolph and Theodore Arnold, were the original plaintiffs and the other appellees were interveners in an injunction proceeding in the chancery court of Pulaski county to prevent appellant from closing an alley or passageway 20 feet wide for a distance of 150 feet and 50 feet wide for a distance of 68 feet, entering block 85 of the original city of Little Rock, Arkansas, on Louisiana street running west for the distance aforesaid, 218 feet, which alley or passageway they alleged had been acquired by themselves and the public by prescription from appellees' predecessors in title.
The alley or passageway was included in the description of lots purchased by appellant on June 9, 1937 as a part of the lots it purchased.
Appellant filed answers to the complaint and interventions denying that appellees and the public had acquired the right to use the alley or passageway by prescription. The cause was submitted to the trial court upon the pleadings, exhibits and testimony introduced, resulting in the following decree:
An appeal has been duly prosecuted from said decree and the cause is here for trial de novo.
The record reflects that the original plat of block 85 in the city of Little Rock showed an alley 20 feet wide running through the center of said block from north to south; that the alley shown by the plat was in the town branch and was never used by anyone as an alley but, on the contrary, was covered over and converted into and used as lots or parts of lots when buildings were constructed in the block fronting out on Fifth street on Capitol avenue, Sixth street and Center street; that at some time thereafter the public began to use as a passageway the alley involved in this suit, entering same on Louisiana street and continuing west 218 feet; that the public used 20 feet in width the first 150 feet and then 50 feet in width for the remaining distance of 68 feet in which to turn around and return to Louisiana street where they entered; that after the public began to use the alley in question buildings were constructed in the block fronting out on Fifth, Sixth and Center streets and running back to the alley or passageway used by the public; that from time to time as these buildings were constructed doors or entrances were built in the rear end of the buildings for entries into and exits out of the buildings into the alley or driveway used by the public so that eventually the alley or driveway so used was entirely enclosed by the buildings abutting thereon.
It does not appear definitely just when the public began to use the alley or driveway but it does reflect that the alley or driveway was being used by the public forty to fifty years before appellants attempted to close the alley or driveway.
W. G. Hall testified that when the Boyle Realty Company in which he was interested constructed its building abutting on the alley in question in 1923 that the public was using the alley or driveway as a public alley and had been using same as an alley or driveway as far back as he could remember and had used it for its entire width and length when he was a boy; that at the time he was testifying he had been a resident of Little Rock for fifty-seven years; that in 1927 the Boyle Realty Company and the Kempner Theater Company, both of whom had constructed their buildings abutting on the alley, cut the grade of the alley down and paved same from its entrance on Louisiana street to the west line of the Kempner Theater building for a distance of 150 feet into the block from the entrance of the alley on Louisiana street at an expense of more than $961; that thereafter in 1929 the Boyle Realty Company laid sewer pipes and manholes in the alley and in 1930 H. R. Coffman, representing the Exchange National Bank, a predecessor in title of appellant, requested the Boyle Realty Company to give him or the bank a quitclaim deed to any interest it might have in the alley and made the same request to several of the other property owners who had built their buildings and abutted the rear end of them upon the alley in question; that he referred H. R. Coffman's request to H. M. Armistead, an attorney at law who at that time represented the Boyle Realty Company in order that he might make an investigation as to the situation; that after making the investigation he advised the Boyle Realty Company that the alley or driveway was a public alley and so informed H. R. Coffman, representing the Exchange National Bank, by letter, which is as follows:
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