Sharpe v. Marcus

HARALSON; J.- An injunction is sought by complainant,- — who is appellant here, — on bill filed against Johanna Marcus; the appellee, to enjoin her against closing an alley-way between the premises of herself and the defendant. It is sought to be maintained on the theory of a prescriptive right to an easement, in that complainant. and those under whom she claims, have used and occupied the alley for over twenty year's as a necessary right of way to- the rear of her premises. The respondent filed answer denying the allegations of tire bill in so far as it claimed this right, and setting up that she is the owner in fee of the lot' of which the alley is a part, and has been for over twenty years before the filing of the bill; denies that complainant has any right, title or interest in said alley, and avers, that whatever use complainant has made of the same was a permissive use, and in recognition of defendant’s title in fee of her said lot and alley. The chancellor, on pleadings- and proof rendered a final decree against complainant, dismissing her bill. The proofs shows without conflict, that defendant and those under whom she claims, owned the land on which the alley ran for a great number of years, — more than •twenty years before the bill was filed; that the user by complainant was not exclusive, and not inconsistent with the rights of the defendant in and to the land; nor was it shown by complainant that her user, and the user of those under whom she claimed, Avas under any claim of right as against defendant: with her knowledge; but [149] tiie ptootf' shows with • satisfactory conclusiveness,' that tlie user by complainant‘and her predecessors, was never adverse to defendant,' hut' tvas simply acquiesced in and permissive.' I’Ve have hut recently héld, consonant’with Aveli. settled principles, that when a user is not inconsistent with the rights of the 'owner of the fee ''in’its use and enjoyment,, the presumption is that such user is. p.ermis-. sive and not adverse ; that,, an easement by prescription is created only by an, adverse or hostile' use of the privilege, with the knowledge - of the person against whom it is claimed-, or by use &o open,- notorious and uninterrupted that knowledge will be presumed,’ and exercised upon a claim of right adverse'to the owner and acquiesced in by him, extending to a, period at least to- that, prescribed for acquiring title, to land by adverse possession, and that no easement can he acquired when it is by express or implied permission. — Jesse French P. & O. Co. v. Forbes, 129 Ala. 741, s. c. 135 Ala, 277. •Under the facts disclosed, the complainant did not- acquire the easement by prescription, as she seeks to establish," and the chancellor very properly so held and dismissed her bill. Affirmed.