Walker v. Clifford

• Decision Date: 15 January 1901
• Citation: 128 Ala. 67,29 So. 588
• Parties: WALKER v. CLIFFORD ET AL.
• Court: Alabama Supreme Court

29 So. 588

128 Ala. 67

WALKER v. CLIFFORD ET AL.

Supreme Court of Alabama

January 15, 1901

Appeal from chancery court, Jefferson county; John C. Carmichael Judge.

Bill by William A. Walker, executor of W. S. Mudd, against M Clifford and Annie Clifford, to enjoin the obstruction of a right of way. Decree for defendants, and complainant appeals. Affirmed.

Complainant alleged in his bill that on December 29, 1898, he had leased by written lease to defendants for a term of two years to and inclusive of December 31, 1900, what is known as the "Florence Hotel Building" in Birmingham, including the hotel rotunda therein, excepting therefrom certain stores in said building, for occupancy by defendants as a hotel that on April 1, 1898, complainant leased to R. D. Burnett Company certain portions of said Florence Hotel Building including the saloon and billiard room therein not leased by him to defendants, and that as a part of said lease by complainant to R. D. Burnett Company complainant agreed that all doors opening between the part of the building leased to defendants and the part leased to R. D. Burnett Company should be kept open for the use of said R. D. Burnett Company; that the said Florence Hotel Building was built especially for hotel purposes and provided with rooms for cigar stands, barber shop, saloons and billiard hall, all of which were accessible from the hotel rotunda by doors, and that it had always been customary for persons to pass freely from the hotel rotunda to such rooms, of which custom defendants knew at the time they made their said lease, and that the billiard room had no opening on the street and was accessible only through the saloon or hotel rotunda, and only through the latter when the former was closed, and that defendants took the premises rented by them with knowledge of such facts and subject to the easement described in said bill; that on the day following the filing of such bill an election would be held, and that the said saloon would be closed, and that the only way for customers of the billiard hall to have access thereto would be through the hotel rotunda; that all parts of said hotel building supplement and are appurtenant to each other and the free use of all for their purpose is essential to the value and utility of the whole, and that there was a necessary right of way through the hotel rotunda to the billiard room which defendants had no right to obstruct; that defendant M. Clifford acting for himself and defendant Annie Clifford had obstructed the door leading from the hotel rotunda to the billiard room for the purpose of cutting off access to said room and refused to remove such obstruction and threatened to continue same as a matter of right; that R. D. Burnett Company had called on complainant to keep said door open as provided by the contract of lease, and that unless complainant did so he would break his contract, subject himself to a claim of damage and his lease contract be impaired. The prayer of the bill was for process, and that an injunction issue restraining defendants from obstructing the door leading from the hotel rotunda to the billiard room, and from interfering in any way with the free access of said R. D. Burnett Company to said billiard room through the hotel rotunda; that on the final hearing, said injunction be made perpetual, and for general relief. The bill was duly verified.

Upon the filing of the bill, a temporary injunction was ordered by the chancellor, and was issued and served on defendants.

On April 17, 1900, defendants filed a joint motion to dismiss the bill for the want of equity, and also filed joint and separate demurrers to same. With the motion and demurrers defendants filed a joint answer to the bill, which answer was duly verified by the oath of each of defendants.

The answer of defendants was as follows: Defendants denied that complainant's bill correctly showed the contract of lease by which they took said building, and averred that same was as follows: On January 7, 1898, defendants leased the hotel premises from complainant by a written lease which expired on December 31, 1898; that as a part of said lease complainant gave defendants the right on the expiration thereof to rent the premises for a further term of two years, and that on the expiration of said lease on, to wit, December 28, 1898, in exercise of their said option or right, defendants again leased said premises. Defendants admitted that R. D. Burnett Company had been in possession of certain parts of said building including the saloon and billiard room since about April 1, 1898, but defendants denied any knowledge of the terms of the lease under which same was occupied. Defendants also denied that complainant had the right to agree with said R. D. Burnett Company that the doors between the part of said building leased to Burnett Company and the hotel rotunda leased to defendants, should be kept open for the use of said R. D. Burnett Company, and defendants denied that they ever had any knowledge of any such stipulation; and denied further that at the time their lease was made, there was any saloon or billiard room in said building, and stated that the rooms now occupied as a saloon and billiard room by R. D. Burnett Company were at such time vacant, and defendants denied that at such time it was customary for persons to pass freely to and from said billiard room or saloon through the doors opening into the hotel rotunda, and that defendants knew of any such custom. Defendants admitted that there was a door between the hotel rotunda and the billiard room and defendants stated that the saloon and billiard rooms were both parts of the same room or store, the saloon being in the front part of same and the billiard room being in the rear part of same, and that the front and rear parts of said room were divided from each other by a fixture of scroll work and glass doors, and that said saloon and billiard room were owned and conducted by the same parties, R. D. Burnett Company, and were operated in connection with each other as a part of the same business. Defendants denied that they leased said premises subject to any easement whatsoever, or that it was the understanding that they should take same subject to any terms or easements not provided for in their contracts of lease, and defendants stated that they had always insisted on their right to close any and all doors between the billiard hall and the hotel rotunda, and that said R. D. Burnett Company had up to January 1, 1899, paid defendants rental for defendants allowing the door between the hotel rotunda and the billiard room to remain open, and that at the time the lease of December 29, 1898, was executed, complainant had tendered defendants a lease containing a stipulation that the doors between the hotel rotunda and billiard room should be kept open, and that defendants had refused to accept a lease containing such a stipulation on the ground that same was not in compliance with defendants' option of lease, and that thereupon said clause in said lease was stricken out. Defendants denied that all parts of said building supplemented and were appurtenant to each other, and that the free use of all was essential to the value and utility of the whole, and stated that if such had been the intention in the construction of the hotel building, such intention was abandoned by complainant by his lease to defendants without stipulation to that effect. Defendants averred that the operation of the saloon and pool tables was a great annoyance and inconvenience to them in their use of the part of said building...