Clay v. Penzel

Riddick, J., (after stating the facts.) This is an appeal by M. J. Clay fronv a judgment of the chancery court of Pulaski County enjoining him from putting a building upon or otherwise obstructing a strip of ground 15 feet wide lying between the land of plaintiff Penzel in block 354 and land owned by plaintiff O’Dougherty and plaintiff Mesler in block 353. The plaintiffs claim that this strip of ground, which extends north and south the full length of these two blocks, is a public .alley, and constitutes an open public passway between the two blocks, while defendant Clay contends that it is in fact a part of block 354, and owned by him, and that such use as plaintiffs may have made of it was by his consent and permission. There is some evidence tending to show that when the land covering blocks 353 and 354 was first laid off into blocks and lots á street about fifty or sixty feet wide was laid off between these two blocks, this street being an extension or what is now known as Izard Street. This land was at that time beyond the city limits.' The defendant, Clay, afterwards became the owner of block 354, which lies west of block 353, and there is evidence tending to show that he claimed the strip of land in controversy as part of block 354, and that he had it inclosed. But we think it is unnecessary to determine whether this strip was originally a part of Izard Street, and represents what the encroachments of abutting landowners have left of that street at this place, or whether it was originally a part of block 354, and as such was owned by Clay. We may, so far as this case is concerned, admit that this strip was a part of block 354, and owned by Clay. Pie in 1883 sold and conveyed to one Farquahar a lot 85 feet wide and extending across block 354 from North to South, leaving this 15 foot strip between the land sold to Farquahar and block 353. As Clay did not own block 353, and as the lot he sold to Farquahar in 354 extended completely across this block, thus separating this fifteen-foot strip from the other part of that block owned by Clay, it is difficult to see why Clay reserved such a narrow strip of the block unless he had doubts of his right to convey it. But, if he owned the entire block, he could subdivide it as he pleased, and we pass that point. He did sell the lot to Farquahar, cutting this narrow strip off from the other paid of the block owned by him. Farquahar in 1888 sold to plaintiff Penzel, and he erected a fence along the east side of his lot extending across block 354 and adjoining the strip of land in controversy on the west. The parties who owned the land in block 353 east of this strip had a fence on this land. This left the strip of land in controversy inclosed on its east and west sides; on the north side it extended to the river bluffs; on the south side it opened into North' Street, and the evidence shows that since 1888 or 1889 it has been continuously used by plaintiffs as a pass way between the lot owned by plaintiff Penzel in block 354 and the lots in block 353 owned by the other plaintiffs. Whether these plaintiffs used this strip as a private pass-way or as a public alley is not very material, so far as this case is concerned; for a private way over the land of another may be acquired by adverse use in the same time that the public may acquire the right to a public highway by adverse user. In either case the use must be under a claim of right, and not permission. The way in either case must be used openly, continuously and. adversely under a claim of right for the full period of the statute of limitations, which in this State is 7 years. 14 Cyc. 1145-1149; 22 Am. & Eng. Ene. Eaw, 1187; 23 Ib. 10; Johnson v. Lewis, 47 Ark. 66. It is clear from the evidence that this strip has been continuously used by plaintiffs as an alley or passway for 10 or 12 years at least before it was obstructed by the defendant. The only question in dispute is whether that use was permissive, or adverse and under a claim of right so open and notorious as to put defendant on notice thereof. The decision in this case turns then entirely on a question of fact. There is some conflict in the evidence, but it would serve no useful purpose to set it out or to go into a discussion of the same. Sufficient to say that we have not only read the arguments of learned counsel, but the evidence as set out in the transcript, and that we are-of the opinion that it supports the finding of the chancellor that the strip of ground in controversy has for at least -10 or 12 years been used continuously, openly and adversely by the plaintiffs as an alley or passway between their lots, and that it has also been used more or less by the public and that the defendant Clay has now no right to occupy or obstruct the same with buildings or in any other way. The injunction to prevent this.was in our opinion properly granted. Judgment affirmed.