Hoffman v. Dorris

Mr. Justice Benson delivered the opinion of the court. The pleading and the contention of the litigants can be more clearly comprehended by an examination of the following drawing: 1. Plaintiffs contend that the deed describes the rig’ht of way as the rectangle marked A, and the de [629] fendant insists that the alley described in the written instrument is the ground inclosed in the rectangle B. We are wholly at a loss to comprehend defendant’s contention upon this point, for it appears to us perfectly clear that the description in the deed identifies the alley as being the ground indicated by the rectangle A and we cannot perceive any ambiguity in the description. The defendant does not plead any mistake or imperfection of the writing and it follows that we are not at liberty to consider parol evidence as to the intent of the parties at the time of the execution of the instrument. 2-4. We shall consider then the defenses of nonuser and adverse possession which may be logically discussed together. The authorities appear to be uniform in support of the doctrine that a person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land: 8 E. O. L. 810, and cases there cited. However, if the grantee of an easement- is prevented from enjoining it by the open, unequivocal, continued use by the servient owner, that is, by such a use as is incompatible with the possession and nse of the easement by the dominant owner, and such adverse possession should continue for the statutory period prescribed for acquiring an adverse interest in real property, then the easement is lost. The evidence in the case at bar is conflicting, but out of it all we conclude that the following facts are practically indisputable; that the only obstructions which have ever been placed in the alley since the grant of the easement was executed, were a gateway placed at the Ninth Street entrance by the predecessors in interest [630] of the plaintiffs for the purpose of greater privacy in the rear of the hotel; a board fence across at the same point built by the defendant in 1912; and the occupation of the alley from September, 1913, to March, 1914, by a tenant of the defendant who occupied the ground with a peanut wagon. These facts fall short of establishing an adverse possession. Our consideration of the evidence compels the conclusion, therefore, that the plaintiffs are entitled to the use of the alley as described in the deed of August 28, 1886, and the decree of the trial court is reversed, and one entered here making the injunction permanent. Reversed. Decree Rendered. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.