In Feld, et al. v. Y.M. Hebrew Asn'n., 208 Miss. 451, 44 So.2d 538, again the owners of the easement were enjoined from parking on the easement, so as to block it.Summary of this case from Aladdin Petroleum Corporation v. Gold Crown Properties
February 27, 1950.
1. Easements — private right of way — relative rights of owners of the dominant and subservient tenements.
Where a private right of way exists the owners of the dominant and servient tenements must use such way in such manner as not to interfere with one another's utilization thereof.
2. Easements — private right of way — effect of grant of.
The grant of a right of way over land does not pass any other right or incident; the owner of the soil retains full dominion over his land subject merely to the right of way and he may make any use of his land which does not interfere with a reasonable use of the way.
3. Easements — private right of way — use as a parking place.
The owner of a lot upon which he conducted a mercantile business conveyed an adjoining lot and reserved in the conveyance a private right of way "for the passage of persons, mules, horses, carts, wagons, buggies and vehicles of like description", but thereafter the owner of the right of way so reserved asserted the right to an exclusive occupancy of the way for a parking place for automobiles and trucks against which the owner of the servient estate applied for an injunction: Held, that an injunction was proper against any use of the right of way by the owner thereof for parking purposes except such parking as may be reasonably necessary for the use of the right of way as a way for active transportation to and from the place of business of the right of way owner.
4. Injunctions — attorney's fees — hearing on merits.
When the only hearing in an injunction suit is a full trial on the merits, attorney's fees are not allowable.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Warren County; J.L. WILLIAMS, Chancellor.
J.D. Thames, and Dent Ward, for appellants.
The decree awards to the appellee "a perpetual injunction against the defendants, Maurice D. Feld and Juliet B. Feld, and the said defendants, their employees and agents, are perpetually restrained from trespassing in the alleyway on the Northernmost 22 1/2 feet of the property of the complainant, and said defendants, their employees and agents, are enjoined and restrained from utilizing the said alleyway, either on foot or by any character of vehicle, for other than a right of way and actual means of access to and from the property now owned by the defendant, Mrs. Juliet B. Feld, which property adjoins and lies to the west of the said alleyway and is located in Lot 202 of Vicksburg proper (a particular description of the property of the said Mrs. Juliet B. Feld, which lies west of said alleyway, being found in Deed Book 204 at page 279 of the Land Records of said Warren County)."
This decree adjudicates that the appellee has the full and complete dominion of this alleyway and the absolute right of use of same, subject to the right of appellants to use this alleyway only as an actual means of access to their property. Here, then is a judicial metamorphosis. A positive legal right of user and a positive legal estate in land is changed by the decree of the trial court into a bare permissive privilege. This decree changes the rights of the parties and erroneously interprets them in the light of the presently existing, changed situation and conditions; it erroneously, unwarrantedly and unreasonably restricts appellants' right of use; it denies to appellants the fair enjoyment of its legal right of use, and all the incidents and adjuncts thereto, and makes the use difficult, burdensome and almost impossible. The decree is in direct conflict with, and contrary to, the long established and well settled principles of law applicable to this case.
"Furthermore, it is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant; and the exercise of any such right cannot be complained of by the grantee who can claim no other limitation on the rights of the grantor, but such as are expressed in the grant or necessarily implied in the right of reasonable enjoyment. So the right to make any use of the servient soil when it does not interfere with the easement cannot be abridged by words used in the granting clause, unless the intention to limit the estate is clearly expressed or is a necessary implication from the words used. Since, however, the rights of the owner of the easement are paramount, to the extent of the grant, to those of the owner of the soil, the latter cannot make any use of his property which obstructs the easement or is incompatible with its existence, or which renders the exercise by the owner of the easement of his rights unreasonable, difficult, or burdensome; and the same rule applies to one who claims under the owner of the servient tenement. In determining if the use made by the owner of the servient tenement is consistent with the rights of the owner of the easement, the court should consider the nature of the easement and the limitation placed on it by acts of the parties as well as the interpretation of the agreement made in the easement." 28 C.J.S., page 771; see also 17 Am. Jur. p. 995.
The decree further adjudicates "that said defendants, their agents and employees be, and they hereby are, further enjoined and restrained from wrongfully thwarting the use of said alleyway by the complainant and its members, provided that said use does not unreasonably or harmfully interfere with the right of the defendants as a means of access or passage to and from the premises owned by the defendant, Juliet B. Feld, lying west of said alleyway."
Frankly, appellants are at a total loss to know just what this part of the decree means. It is apparently seeking to further adjudicate the rights of the parties and to give appellee some additional rights in this alleyway to the exclusion of the appellants, but just what it seeks to adjudicate and what the rights are, appellants do not know.
This part of the decree is vague, uncertain and indefinite, and completely clothes the rights of the respective parties in a cloak of darkness and doubt. It does not clearly adjudicate the rights of the respective parties in order to avoid future difficulties, discussions and disputes with reference thereto.
The appellants, as the owners of the legal right of user, have an interest in the alleyway; they own the dominant estate, and, as the owners of the dominant estate, their rights are paramount to that of appellee, the owner of the servient estate. They have the legal right to the full enjoyment of this right of user and all of the necessary incidences and adjuncts thereto, without same being unreasonably and unwarrantedly restricted or made difficult or burdensome, by the appellee or by the decree rendered in this case by the trial court.
Vollor, Teller Biedenharn, for appellee.
The reservation contained in deed of January, 1892, vests an easement for a passageway only in appellants, leaving appellee, as the owner of the fee, with rights to also enjoy and utilize its ownership of the servient estate. 17 Am. Jur. 925-33, 955, s. 97; Winslow v. Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A. (N.S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851; Parham v. Bradberry, 185 Miss. 402, 188 So. 298; Quin v. Sabine, 183 Miss. 375,
183 So. 701; Lott v. Payne, et al., 82 Miss. 218, 33 So. 948; 37 Words Phrases, dealing with "Right of Way", pp. 662, et seq.; 33 Words Phrases, dealing with "Private Right of Way", p. 717, and dealing with "Private Way", p. 727.
Injunction in favor of appellee against appellants was and is proper remedy rightfully granted. 17 Am. Jur. 995; Hood v. Foster, 194 Miss. 812, 13 So.2d 652; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Ham et al. v. Kings Daughters Circle No. 4 of Greenville, Miss., 170 Miss. 490, 155 So. 164; Rosenblatt v. Escher, 184 Miss. 274, 185 So. 551.
The injunction granted properly defines and protects the relative rights of the litigants. The injunction granted, made necessary by the past acts and contentions of appellants and the threats to so continue, did two things: (a) enjoined appellants from trespassing in the alleyway, affirmatively, however, pointing out and assuring their established right to use said alleyway, as the reservation say, for a means of access, or passage, over the entire width thereof, in going to and from their property either on foot or by any character of vehicle; and (b) then enjoined the appellants from interfering with the proper use of said property by the owner thereof, "provided that said use (by appellee) does not unreasonably or harmfully interfere with the right of the defendants (appellants) as a means of access or passage to and from the premises owned by the defendant, Juliet B. Feld, lying west of said alleyway".
Appellants assert in their brief that this decree leaves them with a "bare permissive privilege". We cannot agree. The appellants made the injunction necessary — they brought it upon themselves, as the expression goes. The injunction does aught but define and protect the the respective rights and estates of the parties, conformably to a correct solution of the issues in the cause at bar. This injunction has been in full force since the date of January 12, 1949 — over a year now. It has resulted in no hardship upon appellants nor handicap to their business, but it has prevented them, as they had been wont to do, from wrongfully using appellee's property when they were not using same in going to and from their property, and it has deterred appellants from excluding, or seeking to exclude, appellee and the lessee of its basement floor, the Organized Reserve Corps of the United States, from its property and estate therein.
No error committed by court below in excluding certain testimony.
The cross-appeal — appellee was entitled to damages and specifically to recovery of its reasonable solicitor's fee. D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 151 A.L.R. 631; Commercial Credit Co. v. Spence, 185 Miss. 295, 184 So. 439; New Orleans, Jackson Great Northern Ry. v. Albritton, 38 Miss. 242; 15 Am. Jur. p. 553, Section 145; New York, Chicago St. Louis Rd. Co. v. Grodek, (Ohio), 186 N.E. 733, 89 A.L.R. 1091; Wilson v. Wilson, 198 Miss. 334, 23 So.2d 303.
Appellee owns a lot in the City of Vicksburg which fronts upon the North side of Clay Street for a distance of 50 feet, and upon the West side of Walnut Street for a distance of 147 1/2 feet. This property was acquired by its predecessor in title from Adolph Rose and Rosalie Brown in 1892 and it has for many years maintained a building upon said lot which houses a social club operated pursuant to its charter of incorporation. The deed of conveyance to said lot contains the following reservation:
"It is further expressly agreed and understood and we reserve for ourselves and assigns, a perpetual right of way not exceeding twenty-two and one-half feet wide across the extreme northern end of the property hereby conveyed, for the passage of persons, mules, horses, carts, wagons, buggies and vehicles of like description to and from the property now owned by us in said Lot 202, it being, however, distinctly understood and agreed that the B.B. Literary Stock Company or its assigns may build over said right of way, provided they leave space sufficient for the convenient use of said right of way for the purposes mentioned. But the above right of way is not to be construed in any way as a public right of way but simply as a right of way for the use and benefit of said Adolph Rose and Rosalie Brown and assigns, as above stated."
The right of way above mentioned is now owned by appellants and is used by them as a means of access to the rear door and loading platform of their furniture business which is situated in a building immediately West of said lot and fronting upon Clay Street. Appellee's building is constructed over the space of 22 1/2 feet described in the right of way reservation, but with an opening across said space underneath the second floor sufficient to furnish appellants full and free ingress and egress to and from their furniture business at all times with motor trucks and delivery vehicles.
A few years ago appellants conceived the idea that they had the exclusive right to the use of said right of way notwithstanding the fact that appellee's building is so constructed that there are four entrances from the ground floor thereof into said 22 1/2 ft. space, and that these entrances had been used by appellee for many years. So persistent became the claim of appellants to their use of said right of way for parking automobiles and trucks in the unused portion thereof to the exclusion of appellee and all its members that this suit was finally instituted by appellee seeking a perpetual injunction against appellants to restrain them and their employees and agents from utilizing said space for any purpose other than a right of way as an actual means of access to their property.
The cause was heard by the Chancellor upon oral and record evidence and he entered a decree enjoining appellants and their employees and agents from utilizing said 22 1/2 ft. space, either on foot or by any character of vehicle, for other than a right of way and actual means of access to their said property, but the decree further restrains appellants "from trespassing" upon said space without defining what would constitute a trespass, and further enjoins and restrains them "from wrongfully thwarting the use of said alleyway by the complainant and its members, provided the said use does not unreasonably and harmfully interfere with the right of the defendants as a means of access or passage to and from the premises" owned by them lying West of the alleyway. From this decree Feld and wife have appealed and the appellee has prosecuted a cross-appeal.
In the case of Quin v. Sabine, 183 Miss. 375, 183 So. 701, 702, where Quin merely had an easement for a roadway, this court said: "But even so, appellant has not become the owner of the land upon which the roadway is located. He owns an easement therein for a roadway only. He may work the road so as to keep it reasonably usable as a private way, but he cannot lawfully take dominant possession and deal with it as if he were the owner of the land". In the earlier case of Lott v. Payne, 82 Miss. 218, 33 So. 948, 100 Am. St. Rep. 632, it was held that a deed to a strip of land limiting the grantee's interest to "a private easement, or for street purposes only" does not authorize the grantee to take exclusive possession of the land.
In situations such as here presented the law is succinctly but clearly stated in 2 Thompson on Real Property, Permanent Edition, p. 190, Section 584, as follows: (Hn 1) "Where a private right of way exists, the owners of the dominant and servient tenements must use such way in such a manner so as not to interfere with one another's utilization thereof. (Hn 2) The grant of a right of way over land does not pass any other right or incident. The owner of the soil retains full dominion over his land subject merely to the right of way. He may make any use of his land which does not interfere with a reasonable use of the way." See also C.J.S., Easements, pp. 770-772, Section 91, and 17 Am. Jur. p. 993-996, Easements, Section 96-98.
(Hn 3) In view of these authorities we are of the opinion that the decree of the Chancellor is correct in enjoining and restraining appellants from utilizing said 22 1/2 ft. space for any purpose other than a right of way and actual means of ingress and egress to and from their property. We are further of the opinion that appellants have a dominant estate in said space, but only as a perpetual right of way for said purposes of ingress and egress, and not as a parking space for vehicles except such parking as may be reasonably necessary for the loading and unloading of goods, wares and merchandise transported to and from appellants' building, but that said dominant estate or easement is not exclusive to the extent of preventing the utilization of said space by appellee so long as such use by appellee does not interfere with the use of said space by appellants in the enjoyment of the dominant estate vested in them for right of way purposes, and the decree is modified to this extent.
(Hn 4) On cross-appeal the appellee contends that it was entitled to recover damages by way of attorneys' fees. This contention was denied by the lower court and we think such action was correct as the only hearing of this cause was a full trial upon the merits. We specifically pretermit a decision of the question whether a complainant in an injunction suit is ever entitled to recover attorneys' fees.
The decree of the lower court is therefore affirmed as above modified, at appellants' costs.
Affirmed as modified.