Simon v. Pemberton

165 S.W. 297, 112 Ark. 202, 1914 Ark. LEXIS 220

• Court: Supreme Court of Arkansas
• Decided: March 23, 1914
• Status: Published

Opinion

Smith, J.,

(after stating the facts). The deed from Caldwell to appellant’s grantor was a dedication of the alley in question to the public, and this dedication became irrevocable. Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, 77 Ark. 221; Dickinson v. Ark. City, 77 Ark. 570; Brewer v. Pine Bluff, 80 Ark. 489; Stuttgart v. John, 85 Ark. 520; Frauenthal v. Slaten, 91 Ark. 351.

The deed from Caldwell to appellee’s vendors further recognizes the existence of this -alley, for that lot is described as beginning at a point ten feet west of appellant’s lot and this ten-foot strip between the lots was never conveyed to any one by Caldwell; in fact, as has been stated, the deed -to appellant’s vendor -expressly recites the fact of its dedication, as an alley, to the public.

Appellant says that appellee is barred by laches in permitting the erection of this building and that it would be inequitable to compel her to remove it, and she cites us to cases holding that where, by an innocent mistake, erections have been placed a little on another’s land and the damages caused by their removal would be disproportionate to the injury occasioned thereby, the court will not order their removal but will leave the party to his remedy at law, and that the doctrine applied by courts of equity in eases of that kind calls for a consideration of all the facts and circumstances to show what is just and right between the parties. It will not be necessary to review those cases, as the facts to which the doctrine of those cases were applied do not exist here. The chancellor found, no doubt, and that finding would not be contrary to the preponderance of the evidence, that appellee had no knowledge of appellant’s intention of erecting the building, until after she had done so, and appellee did nothing thereafter which resulted in any changes in the situation of the parties, except to wait about four years before the institution of this suit; and it was shown that appellee was protesting during all this time against the maintenance of the building in the alley, and his action in refraining from the institution of this suit for a period of four years was a mere indulgence to appellant, which appellee explains as having been extended in order that ■ she might derive from the rents of the property its approximate cost. Such delay is not laches. Appellee claimed no interest in the strip of land in controversy except a right to require it to be kept open as an alley, for the use of himself and the public in general, and he shows that he has no adequate remedy at law and that the cost of the building is not so great that an order for its removal would be inequitable. No significance is to be attached to the presence of the curbing, for, although its presence interferes to some extent with tfie public use of the alley, still this curbing had been built some time be- ’ fore the dedication of the strip of land to the public.

We think appellee has shown a special and peculiar injury, because of the erection of the building, not suffered in common with the public, and he has the right, therefore, to maintain this suit for an injunction against its maintenance and to compel its removal. Packet Co. v. Sorrels, 50 Ark. 466; Davies v. Epstein, 77 Ark. 227.

The decree of the chancellor ordering the removal of the building is therefore affirmed.