Thompson v. Madsen

STRAUP, J. 1. This appeal involves tbe right of plaintiffs in and to tbe use of a certain alley or right of way. Findings and judgment were for plaintiffs, and defendants appeal. From tbe [330] findings, supported, as we think, by sufficient evidence, it is made to appear: That from 1858 to and including 1879 there was a private alleyway running north and south from Second South to First South streets, through the block between Main and Commercial streets, in the city of Salt Lake, particularly described in the findings. That in the years 1878 and 1879 the plaintiffs, their grantors and predecessors, were the owners of a right of way over said alleyway along its entire course. That in the year 1879 the grantors and predecessors of the defendants, who owned property adjoining said alleyway facing on First South street, closed up a portion of said alleyway a short distance south from First South street. Upon objections being made by the said plaintiffs, their grantors and predecessors, to the closing of the said alley, the grantors and predecessors of defendants then orally agreed with the said plaintiffs, their grantors and predecessors, that, in consideration of such closing, they (the said grantors and predecessors of the said defendants) would and did grant to the said plaintiffs, their grantors and predecessors, in lieu of said portion of the alley so closed a right of way over a portion of the land then owned by the grantors and predecessors of the defendants, running east from the point of said alley so closed to Commercial street \ and, from thence on, plaintiffs, their grantors and predecessors, used said new or substituted alleyway in the same manner as they had theretofore used the alleyway running north and south, openly, uninterruptedly, continuously, notoriously, adversely, and under a claim of right, except in the year 1889, when there was a so-called interruption to the use of a portion of said alleyway running east and west owing to excavations being made by the defendants for a building, nevertheless they providing and leaving a right of way for the use and benefit of said plaintiffs, their predecessors and grantors, and except about the year 1893, when there was a so-called interruption on account of certain repairs made, owing to the neglect of the said defendants, but that such said interruptions were made in recognition of and subservient to the rights of plaintiffs, their grantors and predecessors. That in November, [331] 1902, the defendants erected a gate or fence across the east ■and west alley, and ever since have maintained the same, and, unless prevented by the order of the court, will continue to maintain the said gate or fence, and thereby prevent plaintiffs from at all using the said east and west alley, especially for the purpose of going to and from their lands and buildings adjoining and situate along the said north and south alley. That the east side of Main street and the west side of Commercial street, from Second to First South streets, except the passageway of the said east and west alley, are wholly covered and occupied by buildings. That the plaintiffs own buildings fronting on ■said Main and Commercial streets, -which are used for stores, and that their use of the said east and west alley is necessary for ingress and egress in and to the rear of the said buildings, and for the hauling and delivery of goods and wares by drays and teams, and for the conduct of their business and that of their tenants, and that they have no other accessible or convenient means. That said north and south alley is too narrow for teams ordinarily to turn, and that the said east 'and west ■alley is necessary to enable them to drive to and from the said, north and south alley, and to the rear of their said buildings. That, when the grantors of the defendants conveyed to them the land over which the said east and west alley extended, such conveyances were made subject to the said easement in favor of said plaintiffs, their grantors and predecessors, and subject to their right to the use of the said east and west alley. There were also findings upon other matters, reference to which is here not necessary. 2. It is contended by appellants that the findings of the court are not supported by the evidence; that it was incumbent upon the plaintiffs to show either that they or their predecessors had used the east and west alley continuously, adversely, and uninterruptedly for a period of time greater than twenty years, or that when the north portion of the north and south alley was closed, in 1879, the plaintiffs or their predecessors were given a right of way over the east and west alley by positive grant; and that the evidence does not warrant [332] a finding of such - a fact upon either of these propositions. The evidence is without conflict that the north and • south alleyway from Second South to First South sereets was used by plaintiffs and their predecessors continuously, uninterruptedly, openly, adversely, and under claim of right, from 1858 to and including 1879 — a period of more than twenty years. From this record there can be no doubt but that plaintiffs and their predecessors had acquired an undoubted right in and to the use of the north and south alley along its entire extent from Second South to First South at the time when the north portion thereof was closed by the predecessors of the defendants, in 1879. If, then, the predecessors of the defendants, in consideration of the closing of said portion of the north and south alloy, granted to plaintiffs and to their predecessors a right of way over the east and west alley in lieu thereof, which was accepted by the plaintiffs and their predecessors, the defendants will not now be allowed to close the new or substituted alley without first restoring the old one; and the fact that such grant was oral matters not, if on the faith of it rights have been acquired or relinquished and acted upon. (Wright et al. v. Willis [Ky.], 63 S. W. 991; Hamilton v. White, 5 N. Y. 9; Smith v. Barnes, 101 Mass. 275; Beinlein v. Johns, 102 Ky. 570, 44 S. W. 128; Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. 647.) And where the owner of a right of way, whether acquired by prescription or otherwise, consents to the closing of the said right of way in consideration of substituting and granting to him a new one, the right to the use of such new way at once attaches, and he is not required to use the new way for a period of time to give him title by prescription. Indeed, these propositions of law are not seriously controverted by appellants, but they assert that the evidence shows that only some of the plaintiffs and their predecessors objected to the closing of the portion of the north and south alley, and that the oral grant was given only to those objecting in person or by their agents. We think the evidence is sufficient to warrant the finding and conclusion that when the portion of the north and south alley was closed, and the east and west alley was [333] substituted therefor, it was for the use and benefit of all who had acquired and owned a right in and to the north and south alleyway, including the portion closed, and who acquiesced in such change, and used such substituted way in lieu of the one closed. Moreover, we think there is evidence showing that plaintiffs and their predecessors from 1879 to 1902 openly, notoriously, uninterruptedly, adversely, and under claim of right used the east and west alley a period more than twenty years. The finding of the court that the interruptions, so called, of 1889 and 1893, were for purposes of erecting buildings and for making repairs, and were in recognition of the rights of plaintiffs, is supported by the evidence. Our'conclusion, therefore, is that the judgment of the court below should be, and it is, affirmed, with costs. BARTCH, C. J. ,and McOARTT, J., concur.