Waterman S. S. Corp. v. McGill Institute
| Decision Date | 21 December 1961 |
| Docket Number | 1 Div. 916 |
| Citation | 274 Ala. 481,149 So.2d 773 |
| Parties | WATERMAN STEAMSHIP CORPORATION et al. v. McGILL INSTITUTE. |
| Court | Alabama Supreme Court |
John W. McConnell, Jr., and Armbrecht, Jackson, McConnell & DeMouy, Mobile, and John J. Coleman, Jr., J. Vernon Patrick, Jr., and White, Bradley, Arant, All & Rose, Birmingham, for appellants.
Vincent F. Kilborn and Benj. H. Kilborn, Mobile, for appellee McGill Institute.
McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellee owners.
The appeal is from a final decree of the Circuit Court of Mobile County, in Equity.
This litigation arose out of a controversy concerning the rights of the respective parties in relation to a brick wall which has served for more than twenty-five years as a common or supporting wall for buildings erected on adjoining lots.
The lots involved are located in the City of Mobile within the block bounded on the north by St. Louis Street, on the east by Water Street, on the south by St. Michael Street and on the west by Royal Street.
For the purpose of a better understanding of the issues presented, we are including in the opinion a rough sketch. It is our understanding of the general location of the property involved as indicated by the pleadings and evidence, including certain exhibits.
A part of Lot 1 and all of Lots 2 and 3 were conveyed on March 12, 1897, by Felix McGill to McGill Institute, an educational corporation formed for the purpose of providing young men of the Catholic faith with the advantages of an education, free of cost.
A five-story brick building known as the McGowin-Lyons Building was constructed on Lot 3 in 1907.
On March 28, 1930, McGill Institute conveyed that part of Lot I which it owned and Lot 2 to Powell, Feeks, Duval Realty Company, Inc., a corporation. At the time of that conveyance the old cotton warehouse was on and apparently covered all of Lot 2. A livery stable was situated on a part of Lot 1. We construe the record before us as showing that the stable was approximately thirty feet long and twenty feet wide. It extended from A on the diagram southwardly a distance of thirty feet and extended westwardly from the west wall of the McGowin-Lyons Building a distance of twenty feet. The roof of the stable was supported by the west wall of the McGowin-Lyons Building, which was situated entirely on Lot 3.
The Realty Company destroyed the livery stable sometime between 1930 and 1933, probably in 1932, and in 1933 constructed on Lot 1 an automobile parking garage now known as the Automobile Hotel. The parking garage was so constructed that the only support for the easternmost part of its roof was steel members bolted to the west wall of the McGowin-Lyons Building. The bolts extended into the brick for a distance of several inches but did not go through the wall into the building.
The roof of the parking garage was attached to the McGowin-Lyons Building in the manner described above for a distance of approximately eighty-eight feet, from A to B on the diagram. The thirty feet of the roof immediately south of A was attached to the wall in approximately the same places that the roof of the livery stable had been attached.
The parking garage was operated on Lot 1 by the Realty Company from 1933 until 1938, at which time it was leased to one Fable, who operated it until 1947.
In 1938 the Realty Company sold Lot 2 back to McGill Institute.
On December 2, 1947, the Realty Company leased the parking garage to Waterman Steamship Corporation, a corporation, and Waterman subleased that property to Mobile Parking Stations, Inc., a corporation, on December 23, 1947.
On or about November 22, 1956, the Realty Company deeded to its shareholders, Gertrude Feeks, O. H. Powell, Daisy B. Craig, Philip E. Duval, and Craig S. Duval the parking garage property now known as the Automobile Hotel. The shareholders of the Realty Company will be hereinafter sometimes referred to as the Owners.
In the early part of 1957 some of the bolts pulled loose from the wall of the McGowin-Lyons Building and as a result the easternmost part of the roof of the parking garage sagged. Waterman, or its sublessee, Mobile Parking Stations, contacted an agent of McGill Institute and expressed a desire to have the roof put back in place by placing bolts all the way through the wall of the McGowin-Lyons Building and attaching those bolts to metal plates on the inside of the building.
This was the first time that an agent or representative of McGill Institute had actual knowledge of the fact that the west wall of the McGowin-Lyons Building had been used as support for the roof of the parking garage. McGill Institute would not agree to the proposal made by Waterman or Mobile Parking Stations.
In May of 1958 McGill Institute filed its bill in the Circuit Court of Mobile County, in Equity, against the Owners and against Waterman and Mobile Parking Stations, wherein it prayed that the court order the issuance of a mandatory injunction requiring the appropriate respondent or respondents to remove from the wall of the McGowin-Lyons Building the attachments which support the roof of the parking garage building. McGill Institute also prayed that the court enjoin the respondents from attaching the roof or any other object to the wall of the McGowin-Lyons Building in the future.
The respondents filed answers in which they asserted their right, based upon purchase and prescription, to maintain the connection between the roof and the wall. Among other defendses, the respondents asserted that McGill Institute was guilty of laches and that it was estopped to challenge the right of the respondents to maintain the connection.
Following a hearing at which the testimony was taken ore tenus, the trial court rendered a decree wherein the respondents were enjoined from using, fixing to, tying to or obtaining support from the west wall of the complainant's building known as the McGowin-Lyons Building in any way for any improvements on the Automobile Hotel property. The court further ordered the respondents to remove the existing attachments from the complainant's wall within twenty days. The primary obligation to remove the existing attachments was placed upon Waterman and Mobile Parking Stations.
From that decree Waterman and Mobile Parking Stations appealed to this court.
This court has said that when one adjoining lot owner builds on his own property a wall flush with the line, but resting wholly on his own property, the adjoining owner acquires no interest or easement in such wall. He cannot acquire such interest other than by grant or by prescription raising a presumption of a grant. He cannot, as a right, use such wall as a common wall, or as lateral support for a building thereafter erected on his own lot. Nabers v. Wise, 241 Ala. 612, 4 So.2d 149, and cases cited.
The appellants assert that although the 1930 deed from McGill Institute to the Realty Company contained no reference to an easement, the Realty Company acquired by implied grant an easement in the west wall of the McGowin-Lyons Building, which easement was appurtenant to Lot 1 in that the roof of the livery stable then situated on Lot 1 was attached to and supported by the west wall of the McGowin-Lyons Building, which McGill Institute also owned.
Even if appellants are correct in that assertion, it does not follow that the Realty Company, after demolishing the livery stable, had the right to use the west wall of the McGowin-Lyons Building as support for an entirely new and different building which placed a considerably larger burden on the wall. 357 East Seventy-sixth Street Corp. v. Knickerbocker Ice Co., 263 N.Y. 63, 188 N.E. 158; Lotz v. Hurwitz, 174 La. 638, 141 So. 83; Bean v. Dow, 84 N.H. 464, 152 A. 609; Heartt v. Kruger, 121 N.Y. 386, 24 N.E. 841, 9 L.R.A. 135; Udell v. City Title Insurance Co., 12 A.D.2d 78, 208 N.Y.S.2d 504.
Erecting an entirely new building on an old wall falls into the category of convenience rather than of necessity, and reasonable necessity is usually said to be the basis of the kind of easement here sought to be implied. See Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411; Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492.
Cases may be found where one the buildings was remodeled, added to, or extensively reconstructed and the easement was held to continue, but we have found no case, and none has been cited, where the implied grant has been construed as extending to the dominant owner, who has demolished the original building, the right of support to an entirely new and different building of such construction as to increase materially the burden on the wall of the servient owner. The cases of Nabers v. Wise, supra, and Graves v. Smith, 87 Ala. 450, 6 So. 308, 5 L.R.A. 298, relied upon by appellants, both dealt with entirely different factual situations. Cf. Carley v. Lawrence, 7 Cir., 170 F.2d 381, where the building of the servient owner was destroyed.
The appellants also contend that under the evidence their lessors, the Owners, acquired an easement of support in the west wall of the McGowin-Lyons Building by prescription and they insist that the trial court erred in not so holding.
We have expressions in some of our cases to the effect that an easement or right of support for a building by another building can be acquired by prescription, but such expressions were not necessary to the holdings in those cases. See Bisquay v. Jeunelot, 10 Ala. 245; Graves v. Smith, supra; Nabers v. Wise, supra.
The general rule seems to be that a right of support for a building by another building cannot be acquired by prescription except where it involves the placing of beams or other parts of a building in a wall upon adjoining land. 4 Tiffany, Real Property, § 1194, pp. 557, 558 (3d Ed., 1939); Carley v. Lawrence, supra.
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