Roberts v. Monroe

• Citation: 75 So.2d 492,261 Ala. 569
• Decision Date: 28 October 1954
• Docket Number: 8 Div. 709
• Parties: C. S. ROBERTS, Jr., et al. v. H. Eugene MONROE.
• Court: Supreme Court of Alabama

Page 492

75 So.2d 492

261 Ala. 569

C. S. ROBERTS, Jr., et al. v. H. Eugene MONROE.

8 Div. 709.

Supreme Court of Alabama.

Oct. 28, 1954.

Griffin, Ford, Caldwell & Ford, Huntsville, and Gibson & Gibson, Birmingham, for appellants.

Joe L. Payne, Walter J. Price, Lanier Price, Shaver & Lanier, Huntsville, for appellee.

A map of the property involved is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

STAKELY, Justice.

This case involves the obstruction of an alleged private right of way. C. S. Roberts, Jr. and Virginia Roberts (appellants) are the owners of certain real estate in the City of Huntsville, Alabama, which is shown on the map which appears in the report of the case as Tracts A and B. H. Eugene Monroe (appellee) is the owner of the tract of land in Huntsville, Alabama, which is described as Tract C on the aforesaid map. C. S. Roberts, Jr., and Virginia Roberts filed a bill in this case against H. Eugene Monroe on the theory that he had erected a wall which obstructed their ingress and egress to and from Tract B into and from the strip of land which appears on the map as an alley lying south of Tracts A and B and north of Tract C. E. N. Larkin and James E. Davis, individually, and E. N. Larkin and James E. Davis, doing business under the firm name of Larkin-Davis (appellants) were also parties complainant to the bill, being the lessees of C. S. Roberts, Jr. and Virginia Roberts of the property hereinabove alleged to be owned by them.

The evidence in the case is voluminous and the case was tried orally before the court. We cannot set out all the evidence, but we shall undertake to set out enough of the evidence in the case so that the case may be understood. The lower court after hearing the evidence held that there was no obstruction of a private right of way, denied the relief sought and dismissed the bill.

I. History of the title to the three tracts of land, as shown by deeds to these respective tracts, should first be understood. On March 4, 1919, Enola G. Polk conveyed the fee simple title to two lots to Ida S. Greenleaf. These two lots included all of what is now Tract A, the alley (which at the time included the south 3.5 feet of Tract B and the south 5.5 feet of Tract A) and Tract C. In this deed there is no mention of any alley.

On January 12, 1923, Ida S. Greenleaf conveyed to C. E. Dennis Tract C, together with the use of the alley. This deed provided that the alley was being reserved for the use of the real estate conveyed by the deed and the property lying north of the alley and 'being the SW corner of Clinton and Green Streets.' The only property lying north of the alley and being on the SW corner of Clinton and Green Streets for which an easement in the alley was reserved was Tract A. At the time of this deed Ida S. Greenleaf was not the owner of Tract B.

On March 2, 1923, Ida S. Greenleaf conveyed to C. E. Dennis Tract A, the same property for which she had made a reservation as to the use of the alley. By the terms of this deed Ida S. Greenleaf also conveyed to C. E. Dennis 'all lands owned by her in the block of which this is a part,' thus conveying to C. E. Dennis title to the fee of the alley. By these conveyances title was vested in C. E. Dennis to Tract C, Tract A and the alley.

On May 2, 1923, Thomas W. Holder conveyed to C. E. Dennis Tract B. As a result of this conveyance there became merged in C. E. Dennis the fee simple title to the alley, Tract C, Tract A and Tract B, all the property involved in this suit.

On April 21, 1926, C. E. Dennis conveyed to R. C. Callaway Tract B. No mention or reference to the alley is made in this deed. In other words, there was no express grant of an easement in this deed. The property included in the deed, which we refer to as Tract B, consisted of more than Tract B as conveyed by Holder to Dennis for it also included a strip of land 3.5 feet in width fronting along the south boundary of the old Tract B, the 3.5 foot strip formerly being a part of the alley.

On April 29, 1926, C. E. Dennis obtained a release from the W. R. Rison Bank Company releasing from a mortgage given by Dennis to that company on January 27, 1926, the 3.5 feet which had formerly been a portion of the alley, which 3.5 feet were conveyed by Dennis to Callaway. In this release it is recited that C. E. Dennis owns the alley.

On May 18, 1927, Tract A and Tract C were deeded by C. E. Dennis to Mrs. Alma E. Terry. In this deed Tract A is described as fronting 80 feet on Green Street and Tract C is described as fronting 60.2 feet on Green Street. In the granting clause of this deed appears the following: 'Together with an alley, said alley being reserved for the joint use of the above described property and the property lying north of said alley and being on the SW corner of Clinton and Green Street, said alley being described as follows; towit: 'Beginning at a stake on the west margin of Green Street 80 feet southwardly from its intersection with the south margin of Clinton Street; thence westwardly parallel to Clinton Street 100 feet; thence southwardly parallel to Green Street 16.5 feet; thence eastwardly parallel to Clinton Street 100 feet to the west margin of Green Street; thence northwardly with same 16.5 feet to the beginning and being south of the first described lots (excepting from the above property any land which may have been conveyed to R. C. Callaway by the said parties of the first part as shown by deed of record in the Office of the Probate Judge of Madison County, Alabama, in Deed Book 123, page 372)''. In the habendum clause of this deed appears the following: 'Except that they do not enter into covenants and warranties as against the rights of other property owners to the use of the alleyway, hereinbefore referred to, nor as to the encumbrances mentioned, nor as to the property conveyed to the said Callaway.'

It appears to be undisputed that at this time the only other property owner abutting on the alley was R. C. Callaway.

On July 14, 1937, Alma E. Terry and husband conveyed Tract A to C. S. Roberts, Sr., the property being described as fronting 85.5 feet on Green Street. There was no grant of an easement in this deed. However, the deed included 5.5 feet of the alley in the land conveyed.

On May 24, 1944, Alma E. Terry and husband conveyed Tract C to H. Eugene Monroe. In this deed there was a conveyance of a fee simple title to the alley as it exists today, which is the old alley less the 3.5 foot strip which had been conveyed to R. C. Callaway and less the 5.5 foot strip which had been conveyed to C. S. Roberts.

On June 25, 1946, R. C. Callaway deeded Tract B to Dudley S. Powell, excepting 16 inches on the east side which had been previously deeded to Mrs. Alma E. Terry.

On April 24, 1950, Dudley Powell conveyed Tract B to C. S. Roberts, Jr. and Virginia Roberts (appellants). There was no mention of the alley in question in either of the aforesaid transactions. C. S. Roberts, Sr., conveyed Tract A to C. S. Roberts, Jr. and Virginia Roberts on May 4, 1950. Since the date of this transaction the property involved in this suit has been owned as follows:

The title to Tracts A and B is in C. S. Roberts, Jr. and Virginia Roberts and the title to Tract C is in H. Eugene Monroe.

The appellants attempted to allege in their bill of complaint that they are the owners of an easement in the alley which lies to the north of Tract C and to the south of Tracts A and B on the following theories:

(1) That there was an implied grant of the right to use of the alley to R. C. Callaway at the time of the deed to him from C. E. Dennis, who owned all three parcels of land and who deeded 'Tract B' to R. C. Callaway on April 21, 1926.

(2) An implied grant to the right to the use of the alley to C. S. Roberts, Sr., who purchased 'Tract A' from Alma E. Terry on July 14, 1937.

(3) A prescriptive right to the use of the alley by the owners of Tract B by adverse user thereof for more than twenty years, i. e., from April 21, 1926, the date of the deed from C. E. Dennis to R. C. Callaway, both of whom are predecessors in title to the appellants.

(4) The right to the use of said alley by the owners of Tract A acquired by adverse use thereof for more than ten years, i. e., from July 14, 1937, to date of the deed from Alma E. Terry to C. S. Roberts, Sr., predecessor in title to the complainants under what the complainants-appellants contend is a claim of right.

It is a familiar principle that if the title in fee to dominant and servient estates is vested in one individual owner, all rights are merged in the title in fee, terminating subordinate easements or rights of use. Stanley v. Barclay, 253 Ala. 650, 46 So.2d 210; Louis Pizitz Dry Goods Co. v. Penney, 241 Ala. 602, 4 So.2d 167.

On May 2, 1923, when Thomas W. Holder conveyed to C. E. Dennis Tract B, there resulted a merger in C. E. Dennis of the title to all of the property involved in this suit. The court was correct in its ruling that when Thomas W. Holder conveyed Tract B to C. E. Dennis and he became the owner of all of the property involved in this suit, there was a merger of title in C. E. Dennis, with the result that all subordinate easements or rights of way became terminated. The result is that this case does not turn on any easement or right of way which the appellants may have by reason of the provisions of the foregoing deeds, but if it arises at all, it must arise from an implied grant of an easement in the alley to serve Tract B or prescriptive user of the alleyway or adverse user of the alleyway for the requisite statutory period.

If an implied grant arose, giving to the owners a right of way over the alley, it must have arisen when C. E. Dennis executed and delivered a deed to R. C. Callaway on April 21, 1926. This deed does not, however, contain any provision granting an easement. There is no mention of the alley in the deed. It would have been a simple...