Jesse French Piano & Organ Co. v. Forbes , 135 Ala. 277 ( 1902 )

HARALSON, J.

This case was virtually settled adversely to the claims of complainant below, on the former appeal. The pleadings and the leading facts of the case are there set forth. The testimony taken and introduced on a subsequent trial, does not materially change the facts before the court on the former trial. The other submission and trial was upon the motion of respondents to dismiss the bill for want of equity, and a separate motion to dissolve the temporary injunction upon the denials of the answer. The court overruled the motion to dismiss for the want of equity, but granted the motion to dissolve the injunction. We held on appeal, that the court committed no error in its ruling, and its decree, was affirmed.—120 Ala. 471. _ All the legal principles governing the case were there discussed and decided. It was there said: “If the user he not exclusive, and not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such user is permissive rather than adverse. * * No easemeut can be acquired when the use is by express or implied permission. The user or enjoyment of the right claimed, in order to> become an easement by prescription, must have been adverse to the owner of the estate over which the easement is claimed, under a claim of right, exclusive, continuous and uninterrupted, and with, the knoAvledge and acquiescence of the same. * * One circumstance always considered is, whether the user is against the interest of the party suffering it, or injurious to him. There must he an invasion of the party’s right, for unless one loses something, the other gains nothing. * * The presumption of a grant can never arise Avhere all the circumstances are perfectly consistent with the non-existence of a grant.”

It is undisputed that Mrs. Wing, the lessor of the appellees, is the owner of the five feet alley, and the complainant predicates its claim alone upon a title thereto by prescription, groAving out of an adverse user by itself and those under Avhom it claims, for a period of fifty years or more.

The pleadings and evidence have been carefully examined, and the conclusion reached is, that the complainant’s claim as set up in its bill is not satisfactorily made out, even upon its own evidence, and that the defense as set upi in the answers of respondents bas been clearly established. The learned chancellor was of the opinion that the complainant was not entitled to relief and so decreed, dismissing the bill. Nothing has been made to appear that he was in error in so decreeing, but much that he was correct, and his decree must be affirmed.

It would subserve no good purpose to take the time and space to here review the evidence. The facts will be set out in the report of the case.

Affirmed.