Warlick v. Rome Loan and Finance Company

Mrs. Jessie Ross Warlick filed a suit to enjoin Rome Loan & Finance Company from using a stairway and other parts of a building owned by the plaintiff, for passage to and from the second story of a building of the defendant. The petition as amended was dismissed on general demurrer, and the plaintiff excepted. One of the questions presented is whether the petition showed a prescriptive easement in the defendant. The following facts appeared: J. T. Warlick, the husband of the plaintiff, died in 1927, owning besides other realty four store buildings in the city of Rome, known as 202, 204, 206, and 208 Broad Street. In 1928 his real property was divided among his heirs at law, by a preliminary written agreement and deeds pursuantly executed. In this division the four buildings above mentioned were disposed of as follows: The plaintiff, Mrs. Warlick, received the property known as 208, Miss Susie Warlick, a daughter, received 202, and other daughters received lots 204 and 206. The buildings were contiguous, and each had an upper or second story used for various purposes. In No. 208 was a stairway leading to a hall in the second story of that building, and in the same building, on the second floor, was a ""fire door"" which afforded an opening into ""the upstairs of the other buildings."" This fire door, hall, and stairway were used as a means of passage to and from the second stories of the other buildings, during the lifetime of J. T. Warlick, and continued to be so used until and after the division among the heirs at law. In the divisional agreement the stairway was mentioned as ""going to"" Mrs. Warlick as a part of No. 208, but it was not expressly mentioned in any of the deeds based thereon; nor was there any reference to use or passage. In 1930 Miss Susie Warlick conveyed her building, known as 202, for a valuable consideration, to the Rome Loan & Finance Company, the deed of conveyance being duly recorded in November of that year. This deed, after describing the property conveyed, proceeded as follows: (1) ""This conveyance also includes any and all rights grantor herein may have in and to the use of the stairway leading from Broad Street to the second floor of the buildings located on the J. T. Warlick property, and which was divided by deeds of partition between the heirs of J. T. Warlick in December, 1928, and also all rights to use of the hallways in said buildings."" (2) ""The property conveyed by this deed being the same property conveyed by Mrs. Jessie Ross Warlick et al. to Miss Susie Warlick in deed dated December 5, 1928, and recorded in Book 134, page 453, of the Floyd County deed records."" (3) ""To have and to hold the said land, together with all appurtenances thereto belonging, to the only use of the said party of the second part, in fee simple."" (4) A general warranty of title as to such ""land and appurtenances.""