Wharton v. Hannon , 101 Ala. 554 ( 1893 )

HEAD, J.

On the 18th day of May, 1882, Hannon & Co. acquired by deed from W. G. Wharton and wife, an easement thus described : ‘ ‘ The privilege and right of way to use and pass over with their horses, mules, wagons, teams, drays, trucks,carriages, employees or persons for all mercantile or business purposes a lane or alley way at least eighteen feet wide on and through the rear part of lot number two in square number eight, East Alabama plat, and a lane or alley way of at least twelve feet wide on and through lot number one in square number eight, East Alabama plat,” in the city of Montgomery, Alabama; ‘1and for all time to come said right of way over and through said lots is hereby conveyed, for the purpose of giving the owners, occupants or tenants of buildings of store No. 57 Commerce street an approach and outlet free and open at all times from the rear of said premises to the street.” The appellee, one of the firm of Hannon & Co., afterwards acquired the rights of his co-partner in this easement. There is no controversy in reference to the eighteen feet way, the grantee being in the undisturbed enjoyment of it; but the complaint of Hannon, the grantee, is that Wharton, the grantor, has obstructed and denied him the use of the twelve feet way, and he prays for, and obtained in the lower court, injunction of that obstruction. It is observed. that the deed is indefinite as to the particular location of the twelve feet way ;so much so that the identity of the way intended to be granted could not be ascertained from it alone. The evidence, however, very clearly discloses that immediately after the grant the way intended to be conveyed was definitely located and marked by the parties, and passed to the actual possession and enjoyment of the grantees, who continued therein unmolested until the happening of the grievances complained of in the present bill — a period of somé nine years. Such a location and delivery of possession aids the deed and secures to the grantee a good title and right to the possession of the way so located, as fixed and irrevocable as if the deed itself were perfect. — Bannon v. Angier, 2 Allen, (Mass.) 128; Osborn v. Wise, 7 C. & P. 761; Kraut’s Appeal, 71 Pa. St. 64; Jennison v. Walker, 11 Gray (Mass.) 426; Jones v. Percival, 5 Pick. 485; Wynkopp v. Burger, 12 Johns. (N. Y.) 222. The right of way being thus secured and defined by the deed and location, and the .possession and enjoyment of the grantees thereunder, it is not permissible to introduce prior oral statements of the parties indicating a purpose, on the part of the grantor, at some time in the future to acquire other adj acent land and make a location of the way different from that which was made, and over the land so to be acquired. Nor is it material that abetter way of ingress and egress has been opened by the grantor and offered to the grantee. The latter’s rights are such as he acquired by his contract, and it is for him to determine whether he will surrender them and accept some other benefit in their stead. It is very clear that the fact that the use of complainant’s alley-way involves the crossing, with his teams &c., of the sidewalk on Commerce street, does not make a case of such public detriment or inconvenience as justified defendant in closing the alley, or will induce the court to withhold the exercise of its remedial powers, otherwise properly invoked, to secure to the grantee the enjoyment of his easement.

Upon the evidence, therefore, as we find it in the record, we would have no hesitation in affirming the decree of the city court, but there is an omission in the bill which must work a reversal. As we have seen the deed, in itself, is imperfect, in that it fails to identify the particular land intended to be covered by the easement. It required location under it. In order to obtain relief the complainant was required to allege, as well as prove, that the location was made, and describe the way so located. ' Proof without allegations is not sufficient.— McDonald v. Mobile Life Insurance Co., 56 Ala. 468; Goldsby v. Goldsby, 67 Ala. 560.

The bill fails to show the location. For this omission the decree is reversed, and the cause remanded.