The real purpose of this suit by appellees against appellants was to enforce by injunction an alleged easement over the back or north end of appellants' lots. The alleged easement was not dedicated to the public when the lots were platted, and appellees admit that they never acquired such right by deed or other conveyance. Appellees did not claim the use of the strip of ground by virtue of a technical prescription which presupposes a grant. They base their alleged right to an easement upon seven years' adverse user of the strip of ground. The majority opinion concedes that the case must turn upon this question alone. As I read this record, the evidence is wholly insufficient to support an adverse user for the statutory period. It is conceded that the use by appellants and others originated as a permissive right and not for a consideration. I am at a loss to find anything in the evidence indicating that this permissive use was ever converted into a restricted or adverse use by appellees or any other person. The law is that a permissive use can never ripen into title by limitations. This court is committed to the doctrine that, where an entry is permissive, the statute of limitations will not begin to run against the legal owner until an adverse holding is declared by act or word. Shirey v. Whitlow,80 Ark. 444, 97 S.W. 414; Chicot Lumber Co. v. Dardell,84 Ark. 140, 104 S.W. 1100; Gee v. Hatley, 114 Ark. 376,170 S.W. 72; Britt v. Berry, 133 Ark. 589, 202 S.W. 830. *Page 396
The construction by appellants of fences and garages a short distance south of their north line is not inconsistent with the permissive use to their neighbors of the strip left by them on the north side of their lots. They had a perfect right to build fences and garages on their lots at any point or place they desired. Dr. McGill testified positively that, at the time he purchased his lot, he found an embankment on the west side thereof which prevented him or any one else from entering the strip of ground claimed by appellees, and that he gave the party who occupied the lot east of him permission to take down the embankment to haul more manure in that way. He also testified that he assisted his neighbor in taking down the embankment so that he might himself come in that way. He also testified positively that he gave appellees permission to use the strip of ground as a private way as long as they could use it without any friction between themselves.
I do not understand that anybody contradicts the fact that this strip of ground was blocked off by an embankment on Wolfe Street when Dr. McGill purchased his property, or that there is any direct denial of the fact that Dr. McGill extended permission to his neighbors, including appellees, to use the back part of his lot to enter their several properties as long as it could be used peaceably by them all. This testimony is in keeping with the admission of appellees and the declaration in the majority opinion that the original user of the strip in question was permissive.
I am convinced, after a very careful reading of the record, that the decree of the chancellor should be reversed, and the cause remanded with directions to dismiss appellees' complaint. *Page 397