Scott v. Dishough, 83 Ark. 369 (1907)

July 8, 1907 · Arkansas Supreme Court

83 Ark. 369

Scott v. Dishough.

Opinion delivered July 8, 1907.

Adverse possession' — aeeey.—Where the owners of adjacent property have used an alley openly, continuously, peacefully and adversely for seven years, they acquire an easement therein.

Appeal from Drew Chancery Court; Marcus L. Hawkins, Chancellor;

affirmed.

Knox & Hardy and James R. Cotham, for appellant.

To constitute an easement or servitude, the proof must show the establishment either by writing or by prescription. 19 Ark. 23. If by prescription, the use and engagement must be open, notorious, adverse, uninterrupted and continuous for the full time. 19 Ark. 23; 47 Id. 66; 49 Id. 503; 22 Am. & Eng. Enc. Law. (2 Ed.), pp. 1192-3. It is not adverse if used also by the owner of the fee. 96 Tenn. 378; 36 S. W. 1040; 47 Ark. 66; See also 22 Am. & Eng. Enc. Law (2 Ed.), pp. 1203-4, 1208, 1211; 47 Ark. 66; 73 Id. 296.

I. G. Williamson, for appellee.

■ The alley has been used openly, continuously, peacefully and adversely for more than seven years, and thereby an easement was established. 14 Cyc. p. 1152, 1156; 47 Ark. 66; 72 Ark. 296.

Battue, J.

This suit was brought by J. B. Dishough against F. H. Scott to enjoin and restrain him from closing up an alley between blocks 197 and 198 in the town of Monticello, in this State. The chancery court granted the injunction, and the defendant appealed.

There is an alley between blocks 197 and 198 in the town of Monticello, in this State. The alley lies, partly, on both blocks. It is a matter of convenience and necessity to the owners of both blocks, and the preponderance of .the evidence in the cause shows that it has been used by the owners openly, continuously, peacefully and adversely as an alley for various purposes for a period of time ranging from ten to twenty years. This is sufficient to vest them with an easement therein; seven years’ adverse possession being sufficient for that purpose. Johnson v. Lewis, 47 Ark. 66; Wilson v. Spring, 38 Ark. 181; Jacks v. Chaffin, 34 Ark. 534; Hysmith v. Patton, 72 Ark. 296; 10 Am. & Eng. Enc. Law (2 Ed.), 426, and cases cited.

Decree affirmed.