(dissenting). The majority opinion says:
“That Miller, Sr., under an express agreement so to1 do, intentionally abandoned the io-foot wide alleyway in question, and accepted in lieu thereof as a consideration for such abandonment the use of the 16-foot wide alleyway created in 1883.”
The majority Opinion further says:
“The undisputed testimony of Holsey shows an express agreement and an express intention on the part of Miller, Sr., to permanently abandon the right of way in dispute in consideration of the new alleyway created in 1883.”
I cannot let such glaring misconception of the record go unchallenged. It is true that in his direct examination Mr. Holsey testified (28 years after the event and referring to the north and south alley) as follows:
“Q. What did Mr. Miller say about that alley? A. He said that would be better for him and that he would accept that in place of the other permanently.”
However, upon ¡cross-examination the following occurred:
“Q. I am talking about the talk to Maj. Miller. It was represented to Miller, you say, that this 16-foot alley was to go clear down to his lot? A. Yes, sir. Q. The whole width of it, the 16 feet? A. Yes, sir; 16 feet down to the north end of his lot; yes, sir. Q. S-ure? A. Yes, sir. Q. And if it did do that he was perfectly satisfied? A. He expressed himself that way. Q. You say that this 16-foot alley was to run down to Maj. *489Miller's north line? A. Yes, sir. Q. The full width? We want to fix that fact certain. A. Yes, sir.”
I therefore insist that the evidence does not warrant the statements in the majority opinion. The only statement that would he warranted would he that Miller agreed to give up the alley in dispute provided the north and south alley was brought down to his property. That was never done. There is no pretense that it was ever done. Why was it not done?
Mr. Holsey testified:
“This was the time that Nelson was going to buy the lot next east of Miller’s if I understood it. He was going to purchase the lot of Dr. Southard. Nelson bought lots from me on Main street, an entirely different lot.”
Does not this show the reason why Nelson decided not to allow «the alley to> extend across the 8xio tract owned by him and which was necessary to 'bring the alley to its full width down to Miller’s north line?
Another fact should be observed, viz. that this conversation that Holsey testified to was after the deed dedicating the north and south alie)'' down to Nelson’s north line 'had been made, and ■such deed did not recognize Miller as one of the beneficiaries. This alle}r was strictly a private alley. Tts beneficiaries were:
“G. A. Nelson, Emily Southard, Mary Colony, E. M. Wells, A. H. Mallory, Emma J. Holsey, Lydia Gillen, and E. Wendt, and any or all parties owning land adjoining or lying upon said alley as herein described.”
Can it be fairly asserted that this deed would have given Miller the right to use that alley, even if it had been brought to its full width down to Miller’s north line? In the attempt to show a verbal modification of this deed, Mr. Holsey was asked this question:
“Q. Was there anything said in that conversation about Miller having the right to gO' out north and west? A. That was conceded and admitted.”
It seems to me that it is not for this court to overturn the decision of the trial court and modify deeds and establish and vacate easements on the strength of such inconclusive testimony as above detailed.
*490If there was no executed . agreement to abandon, all that is ■said in the opinion about abandonment is beside the question. The discussion in the opinion about the east and west alley, 22 feet north of the one in dispute, which was dedicated in 1882, has no bearing upon the rights of Milter. Miller, Sr., had nothing to do with that alley whatever.
Construing the evidence most favorably to appellant, all that it tends to show is nonuser, 'but not abandonment. The alley was a public alley, and the right to the use thereof ran with the land, so that evidence of nonuser is not evidence of abandonment. The fire of 1888 destroyed all buildings north of Miller’s store, and no regard was thereafter paid to- lot lines in .the matter of ingress to and egress from the back of the store.
The defendant Southard testified to the abandonment of the alley since 1883, but her own acts contradicted her testimony. In April, 1884, she deeded the third1 lot west of Miller’s to Shields to a depth of 98 feet from Fifth street. This would be 22 f'eet north of the north line of the alley in dispute. In this deed this alley was reserved. In June, 1888, she deeded the lot next west of Miller’s to her husband, which included land north of the alley in dispute and in which deed said alley was reserved. Furthermore, tax receipts were offered in evidence for the years 189T, 1900, and 1905, covering her lot in the southeast courner of’ the block, viz. 49% feet on Fifth street and 98 feet on Cedar street. In these tax receipts the alley was excepted. All of the later deeds with one exception noted the reservation of the alley.
The defendant Kennedy purchased the land on which he built his opera house, with full knowledge of the existence of the alley. This action was begun while he was making the excavation for the building. During the pendency of the action he erected the opera house. I think he did this with his eyes open and at his peril. The trial court made finding’s of fact in accordance with my notion of the clear preponderance of' the evidence. Its judgment, based thereon, should be affirmed.
WHITING, J. I concur in the above dissent.