Opinion
3 Div. 568.
November 2, 1922.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Steiner, Crum Weil, of Montgomery, for appellant.
So long as the title to all the property remained in Mrs. Lomax, no easement existed; and it was only by a severance of the property agreeable to her will that the creation of an easement could be claimed. 19 C. J. 945; 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74; 144 Ala. 448, 39 So. 749, 3 L.R.A. (N.S.) 1082. An easement claimed under the circumstances here could only be asserted by showing necessity for its use; and the test of such necessity is whether the grantee might at a reasonable expense procure for himself a similar easement. 86 Ala. 458, 5 So. 791, 3 L.R.A. 861; 19 C. J. 916; 18 N.J. Eq. 260; 101 Ala. 554, 14 So. 630. With regard to ways classed as continuous easements, an absolute necessity must be shown as a condition to the enforcement of an easement therein. 18 N.J. Eq. 265; 21 N.Y. 505; 66 Miss. 136, 5 So. 228, 14 Am. St. Rep. 554. The use alleged to have been made of the alley was joint, not exclusive, and does not show a right by prescription. 193 Ala. 312, 69 So. 445; 129 Ala. 476, 29 So. 683, 87 Am. St. Rep. 71; 137 Ala. 147, 33 So. 821; 144 Ala. 455, 39 So. 749, 3 L.R.A. (N.S.) 1082. If a bill fails to set forth every essential fact necessary to make out complainant's title to maintain the bill, the defect will be fatal. 202 Ala. 45, 79 So. 381; 67 Ala. 560; 135 Ala. 599, 33 So. 696.
Hill, Hill, Whiting Thomas, of Montgomery, for appellee.
A partial demurrer cannot be directed to allegations not separable from the rest of the bill, and not together and alone constituting the basis of some portion of the relief sought. 21 C. J. 442; Sims, Ch. Pr. 284; 81 Ala. 548, 1 So. 217, 60 Am.Rep. 175; 134 Ala. 420, 32 So. 748. The mere general averment of ownership was sufficient, without tracing the source of title. 163 Ala. 329, 50 So. 232; 19 C. J. 1000. The rights of the parties in the alleyway are equal; each owns the fee to the center, and an easement over the other's half. 193 Ala. 312, 69 So. 445. Where a man owns two parcels of land and conveys one of them, all such continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property pass to the grantee. 144 Ala. 448, 39 So. 749, 3 L.R.A. (N.S.) 1082; 19 C. J. 915, 919.
It is a settled rule of construction that —
"Where a deed describes the land as bounded on an alley, the grantee's title extends to the center line thereof, in the absence of an express intent to the contrary, and the intent of the grantor to withhold his interest in the alley will never be presumed." 9 Corp. Jur. 205, §§ 106, 107, and cases cited thereto.
But where the deed of conveyance makes no reference to an alley there is no authority for the proposition that the grantee acquires such an interest in fee, unless the description in the deed, by common usage and understanding, includes the alleyway.
The allegation of the bill that complainant acquired the fee to the center of the alley in question is by way of legal conclusion merely, and adds nothing to the equity of the bill; nor does the invalidity of that conclusion render the bill subject to demurrer either in whole or in part, if the facts alleged entitle complainant to the use of the alley as appurtenant to his lot, and to the protection of his rights therein by injunction, as against this respondent.
Under the showings of the bill, there is no question presented here as between the respective owners of a dominant and a servient estate; for here the owner of an entire tract has created two separate and distinct lots and tenements for residence purposes, and has separated them by a 12-foot alley, which she subjected in equal degree to the joint and several uses of the occupants of the respective lots, uses which were continuous and apparent. These lots and tenements were then contemporaneously devised by the owner to separate individuals, without any previous change in the status and uses of the alley; and that status and those uses have continued down to the present time.
If this alley were in fact a part of the premises designated as "number 15 Alabama street," the principles which govern as to the creation and enjoyment of easements in favor of dominant estates, and the subjection thereto of servient estates, would of course be called into action; and it may be noted, for the purpose of analogy only, that —
"Where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication." 19 Corp. Jur. 914, § 103.
This subject has been discussed quite fully by this court, with citation of authorities, in Walker v. Clifford, 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74, and Gaynor v. Bauer, 144 Ala. 448, 39 So. 749, 3 L.R.A. (N.S.) 1082. See, also, 9 R. C. L. 759, 760, 761, §§ 25 and 26.
As pointed out by those authorities, the implication of an easement in favor of the grantee of a dominant estate is supported by a reasonable necessity for its enjoyment; while a like implication against the grantee of a servient estate, in favor of the grantor, can be supported only by a strict or absolute necessity.
We think it is perfectly clear, under the allegations of the bill, that complainant has by implication of law an easement in the alley as against the owner, as asserted in the bill; and, having such a right as against the owner of the fee — whoever he may be — he has, a fortiori, the same right as against this respondent, who is shown to have no other right or interest than that of an easement by implication, of exactly the same quality as complainant's.
The allegations of paragraphs 3 and 4 cannot be construed as assertions of two independent equities. On the contrary, they merely supplement each other, and together serve to support an implied easement founded on the intention of the devisor, and the reasonable necessity of the devisee, and his successors in estate, for the proper enjoyment of his premises. That the bill makes a case of such reasonable necessity cannot be doubted.
As to the other aspect of the bill — its assertion of complainant's right to use the alley independently of any implied grant or devise from the owner of the fee, by virtue of his continuous adverse user thereof for 14 years, without permission of the owner and under claim of right — we need not determine whether the allegations of the bill are sufficient to show the acquisition of such an easement as against the owner. See Jesse French P. O. Co. v. Forbes, 135 Ala. 277, 33 So. 183; Sharpe v. Marcus, 137 Ala. 147, 33 So. 821; 9 R. C. L. 772, §§ 33, 34, 36; 19 Corp. Jur. 891, § 59.
The allegations are clearly sufficient to show a prima facie right as against this respondent, who does not own the fee in the alley, and who, under the showings of the bill, has no right to its exclusive use, nor any right to interfere with plaintiff's use.
As continuous possession of land under claim of title creates a presumption of ownership (Eagle P. Mfg. Co. v. Gibson, 62 Ala. 369; Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L.R.A. [N. S.] 1100), so continuous user of an easement — as here, the right of way over an alley — under claim of right is presumptive evidence of ownership of the easement, as against any one who does not show a superior right.
It is to be noted, however, that the only defect in the allegations of adverse user, if defect it be, is the omission to allege categorically that the user was exclusive. We think, however, that other allegations in preceding paragraphs of the bill sufficiently show that complainant's user was exclusive in the sense required by the law; that is, that it was not shared by the general public, and did not depend upon the assertion or exercise of a similar right by others. 19 Corp. Jur. 891, 892, § 59. Moreover, no ground of demurrer specifically points out the omission of such an allegation, and general objections cannot avail. We hold that there is equity in the bill, and that none of the special grounds of demurrer are well taken.
It results that the demurrers to the bill were properly overruled, and the judgment thereon must be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.