Opinion
Opinion delivered October 6, 1930.
1. EASEMENTS — ADVERSE POSSESSION. — The owner of a lot in a city may acquire an easement over the lot of another by open, notorious and adverse user under a claim of right for seven years. 2. PRINCIPAL AND AGENT — KNOWLEDGE OF AGENT. — An agent's knowledge concerning an easement in premises committed to his charge will be attributed to his principal. 3. EASEMENTS — SUFFICIENCY OF EVIDENCE. — Evidence held to show that an easement for a private alley, having been recognized by an adjoining landowner, was not merged in her ownership in fee, and existed when she sold lot to plaintiffs.
Appeal from Sebastian Chancery Court, Fort Smith District; J. S. Holt, Special Chancellor; affirmed.
J. F. O'Melia and Daily Woods, for appellant.
Hill, Brizzolara Fitzhugh, for appellee.
STATEMENT OF FACTS.
W. A. Stanton and Arthur H. Morrow brought this suit in equity against Mrs. Louise Bond to enjoin her from obstructing, by the erection of a house, the mouth of a passageway or private alley leading to their property. The parties own adjoining lots in block 49 in the city of Fort Smith. The plaintiffs own adjoining lots fronting on Garrison Avenue, and the defendant also owns a lot fronting on Garrison Avenue and adjoining a public alley just west of it. The defendant also owns lot 10, which is on the north part of block 49 and adjoining the lots above described as fronting on Garrison Avenue, on the south. There are business houses on all these lots. The lots facing on Garrison Avenue are described in the deeds conveying them as being 75 feet in width and 100 feet in depth. Something over forty years ago, these houses had been erected on the lots now owned by the plaintiffs. They are two-story houses and extend back 90 feet, leaving a passageway of 10 feet. There is a building also erected across this passageway on lot 10 in block 49, and this building is 10 feet north of the property line as described in the deed. This leaves an alley of 20 feet between the houses on the respective lots.
Shortly before the commencement of this action, the defendant threatened to extend her business house, which had been erected on the lot west of the plaintiffs' houses on Garrison Avenue, so that the back of it would extend across and connect with her property on lot 10, thereby obstructing the passageway or private alley between the lots. The plaintiffs claim an easement by prescription or adverse possession in the passageway or private alley leading from the public alley to the rear of their respective business houses.
According to the testimony of W. H. Stanton, he is engaged in the retail meat and grocery business at 815 Garrison Avenue and has been there since 1912. The Morrow building is next door east of him. Both the Morrow and Stanton buildings are two-story buildings, and have been erected for more than forty years. Stanton has been familiar with the buildings since 1909, and the alley or open space 20 feet wide extending from the rear of these buildings to the public alley has been there during that time. The alley is 20 feet wide and is paved. On the 13th day of October, 1922, Mary A. Chauncey executed a deed to W. A. Stanton to said lot. The deed was duly acknowledged and filed for record. The agent of Mrs. Chauncey, in making the sale, represented that the property owners had given 10 feet on each side for a permanent alley, and that he would be entitled to the use of it if he purchased the lot. The alley or passageway was necessary to him in loading and unloading meat. The cold storage in the building was not arranged for the meat to be brought in the front way. The cold storage plant which had been erected in the rear of the building was built to receive supplies from the back.
According to the testimony of Arthur H. Morrow, he had known of the building on the lot which is no his for forty years. For twenty-five or thirty years he had particularly noticed the alley or private passageway back of it was used for loading and unloading merchandise from the store. He would not have purchased the property if he had not known that he had an easement in the private alley, and that it could be used for loading and unloading goods from his store. It is not convenient to load and unload freight from the front of his store. He purchased his lot from Mrs. Chauncey in the fall of 1924. The testimony of other witnesses for the plaintiffs tended to show that the tenants occupying the second floor of the buildings owned by Morrow and Stanton had used the alley back of the buildings for the purposes of carrying in and out the utensils used by them in their trade.
According to the testimony of Harry E. Kelley, he had known all the property involved in this suit for forty-two years. The Morrow property is 817 Garrison Avenue, and the Stanton property is 815 Garrison Avenue. The buildings on both these lots have been erected for more than forty years and were not owned by the Chauncey estate at the time of their erection. Acting as agent for the Chauncey estate, Kelley purchased these lots for said estate, commencing in 1902. The defendant purchased the west 25 feet of lot 11, block 49, being the part next to the public alley, from Clifford German in 1925. He also purchased for the Chauncey estate lot 10 in block 49, which is across the alley and north of said property. In 1909, he built a warehouse on lot 10 in block 49. That lot is fifty feet wide, and the building is forty feet wide. Ten feet was left for the alley or passageway. The witness denied telling Stanton that there was a private alley or passageway in the rear of the lot purchased by Stanton which went with the lot. He said that he told Stanton that the alley was not a public alley but a private alley, and that it was open by consent of the people who owned the property. He further stated that he told Stanton that the owners could build on it at any time. On the other hand, Stanton testified that when he purchased the lot, Kelley told him that the owner would have a permanent alley in the rear of the property.
Wharton Carnall was also a witness for the defendant. According to his testimony, he had known all the lots involved in this action for more than forty years. Walter Ayers formerly owned 817 which is the Morrow property, and W. Webb owned 815 which is the Stanton property. Witness at one time owned the property just west of it next to the public alley. There was a paved alley twenty feet wide in the rear of the building on all three of these lots so that persons could go from the public alley into the private alley or passageway and load or unload goods from the rear of the buildings which fronted on Garrison Avenue. Business houses were on all these lots when witness came to Fort Smith which was forty eight years ago.
The testimony of other witnesses tended to show that the alley or passageway in question has been used continually since the erection of the buildings from forty to forty-eight years ago by the tenants and owners of the buildings for the purpose of going in there and loading and unloading goods from wagons. An alley or passage way twenty feet wide has been open and in use by the owners and tenants of these buildings during all that time.
The chancery court found the issues in favor of the plaintiffs, and it was decreed that the defendant should be enjoined from erecting a building across the west end of said alley or passageway or in any other way obstructing the entrance to it. The defendant has appealed.
(after stating the facts). The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious, and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse user is sufficient to vest the claimant with an easement therein. Clay v. Penzel, 79 Ark. 5, 94 S.W. 765; Scott v. Dishough, 83 Ark. 369, 103 S.W. 1153; Medlock v. Owen, 105 Ark. 460, 151 S.W. 995; and McGill v. Miller, 172 Ark. 390, 288 S.W. 932.
The evidence in this case shows that buildings have been erected upon the lots owned by Stanton and Morrow for between forty and forty-eight years, and that these buildings have been occupied for business purposes during all that time. When erected and for many year's thereafter, they belonged to other persons than to Louise Bond. The lots were 100 feet deep, but the business houses were only ninety feet deep, leaving ten feet for an alley or passageway for the convenience and necessity of loading and unloading merchandise in the business houses. The owner of the property north of them in the same block erected a business house on his property, and he left ten feet for a passageway or private alley. This left an alley twenty feet in width between the houses fronting on Garrison Avenue and those on lot 10 on the north of the same block. This alley was subsequently paved, and was continually used by the different owners of the property as a passageway for the purpose of unloading or loading merchandise from their respective business houses for a period of more than seven years be fore the defendant purchased the property.
Thus, it will be seen that the various owners of the property acquired an easement therein before the defendant purchased the lots in 1902 and 1903. When the defendant purchased the lots, the tenants of the various buildings continued to use the private passage or private alley for loading and unloading goods just as it had been used before. In addition, an agent of the defendant erected a warehouse on lot 10 and reserved ten feet on the south side of the building for a passageway just as it had been before she purchased the lots. Now this indicates that the defendant, through her agent, recognized the existence of the easement at the time she purchased the property, and continued to so recognize it until she conveyed a part of the property to Stanton and Morrow. In fact, Stanton testified that Kelley, the agent of the owner, told him when he purchased the property, that there was a permanent passageway to the public alley in the rear of the building which could never be taken away. While Kelley denied this, he does not deny that he told Stanton that there was a private alley there. As stated in Ward v. Warren, 82 N.Y. 265, what an agent knows about the use of an easement in premises committed to his charge will be attributed to his principal.
The fact that, when the buildings were erected, ten feet were reserved in the rear of them for use as a passageway for wagons in delivering and receiving goods from the respective premises, indicates that it was intended for permanent use as a passageway for the owners and tenants of the various buildings, and that this was continued for the period of more than seven years at a time when the various lots were owned by different persons. Thus, under the principles of law above decided and referred to, an easement in favor of the various owners of the lots was acquired before the defendant purchased them. After she purchased the lots now owned by the plaintiffs, she rented out the buildings for business purposes; and all the attendant circumstances tend to show that she, through her agent and tenants, continued to recognize the existence of the easement. Such an easement was both convenient and necessary for a prod use of the buildings purchased by Morrow and Stanton
Mrs. Chauncey never at any time owned the property on the west side of lot 11 on which the proposed structure is to be erected. This lot was purchased by the defendant from another person in 1920. It lies next to the public alley, and the passageway over it was used by Mrs. Chauncey during all the time she owned the property now owned by Stanton and Morrow. She and her tenants continually used it for the purpose of delivering goods to her two stores, and such use was both convenient and necessary as above stated. In this view of the matter, it cannot be said that the easement became merged in her ownership of the fee when she purchased the two lots now owned by Stanton and Morrow.
We think that the easement existed at the time Morrow and Stanton purchased the lots. Therefore, they were entitled to the injunctive relief prayed for, and the decree will be affirmed.