Shackleford v. Rutledge

1. The petition, after amendment, was not subject to the defendant’s demurrers.

2. The deed of B. M. Long to Harry Gray et al., dated August 16, 1869, created an express trust by which the one acre of land in controversy was dedicated to school purposes and church purposes open to “all Christian denominations.” Almost immediately Mount Carmel Methodist Protestant Church began to exercise privileges available to them under the deed, and have continued to do so at all times thereafter. The Baptist Church, defendant in the lower court, plaintiffs in error in this court, began to exercise the privileges available to churches of Christian denominations in the year 1910, and continued to exercise *689such privileges until the filing of this suit against them. Under the evidence Mount Carmel Church occupied the premises by permission of the trustees named in the Long deed, and did not acquire any prescriptive title to the exclusion of churches of other Christian denominations, because, under the deed, prescription would not begin to run in favor of Mount Carmel Church until the latter had given notice that it repudiated the terms of the deed and claimed exclusive title in its own right. Moreover, if Mount Carmel Church had manifested such claim of exclusive right and title, when it permitted, without objection, the Baptist Church to use and occupy the premises in accordance with the terms of the trust deed for about eight years, such acquiescence would amount to a w.aiver of any previous prescriptive rights which Mount Carmel Church may have acquired. Eor these reasons the court erred in enjoining the defendants, members of the Baptist Church, from the use and occupancy of the building for the purposes of carrying on religious services as members of the Baptist Church.

Judgment reversed.