37 Md. 621 | Md. | 1873
delivered the opinion of the Court.
It appears from the bills of exceptions in this case that in 1867 Thomas F. Johnson and others, being the owners in fee of a parcel of ground in the city of Baltimore, lying on the north side of West Pratt street, and extending to Chester street on the east, and Castle street on the west, proceeded to lay it off in building lots, with alleys contiguous thereto, as designated on the plat referred to in the evidence. There are ten lots on Pratt street, extending north to the depth of one hundred feet — at the rear of which is an alley ten feet wide,’extending from Chester to Castle street. At the north of the ten foot alloy are four lots fronting on the west side of Chester street extending westwardly one hundred feet, and at the rear of these is an alley four feet wide, extending from the ten foot alley northwardly to the limits of Johnson’s ground.
The appellee, who was defendant below, holds as lessee of Johnson, the northernmost lot fronting on Chester street, running back to the four foot alley, with the like use thereof in common.
It appears that the defendant placed an obstruction upon the four foot alley at the rear of his lot, by erecting a fence across it a few inches from the northernmost line or limits of the original Johnson lot. It is to recover damages for this obstruction this suit was instituted.
At the trial two bills of exceptions were taken.
1st. The defendant offered to prove that Samuel. C. Bump owned the piece of ground next adjoining the ground described in the plat, on the north thereof, extending from Chester to Castle street, under a lease from Jos. Williams, (which' was produced;) and that said piece of ground had at the time of the erection of the fence mentioned, been recently improved by Samuel O. Bump, by tbe erection of three houses, fronting on Castle street, and two on Chester street. This evidence was objected to by the plaintiffs as inadmissible, but the objection was overruled and the evidence admitted, and to this ruling the first bill of exceptions was taken.
The second exception was taken to the rejection of the plaintiffs’ prayer, and to the instruction given to the jury, “that there was no evidence in the case of any obstruction to any right of way, which the plaintiffs are entitled to claim under the deeds offered in evidence.”
It thus appears that the question presented by the appeal is the nature and extent of the plaintiffs’ right to
The words of the grant are “to a four foot alley with the use thereof in common.” There is no question as to the alley referred to in the lease, or its dimensions and extent; it was in existence at the time of the lease, and extended as designated on the plat from the ten foot alley on the south, to the northern line or limits of the “Johnson lot.”
It is a way appendant; or easement appurtenant to the property described in the lease, and therefore to bo used in connection with and for the benefit of that property. ■The use granted is one to be enjoyed “in common ,” that is to say, in such manner as is consistent with the use thereof, granted to the defendant and others, lessees of Johnson of the adjoining lots abutting upon the alloy. Subject to this common right, to be enjoyed by others, the plaintiffs are not restricted in the use of the alley, otherwise than that its use must be, as we have before said, annexed to and connected with the occupation of the estate to which it is appendant; and reasonable and proper for the enjoyment of the estate granted.
On these propositions we understand the counsel to agree.
The question is what are the limits and extent of the alley itself, to the use of which the plaintiffs are entitled ? This appears to us to be a very plain question, easy of solution. The grant is of the use of the alley to its whole extent as it then existed, that is the extreme limits or northern line of the “Johnson lot.” This includes as it is correctly said in the appellants’ brief, “the last inch as well as the first inch,” and therefore it is clear that the fence or obstruction placed upon it by the defendant is an invasion of the plaintiffs' legal rights, for which an action
~ The contention on the part of the defendant is that “if the alley were left open at its northern extremity, not only could the tenants of the five houses on the Williams’ lot, pass out and repass over the alley at pleasure, but the slope of the ground being southerly, (as was shown by the evidence,) the waste water and offal from said houses would incommode the defendant in the enjoyment of his house, and of this four foot alley appurtenant thereto.” And to prevent this, the defendant it is supposed had the right to place across the alley the obstruction complained of.
We cannot sanction this proposition; supposing the facts to be as alleged, the defendant has mistaken his remedy, that he might assert by action against the parties who cause him the injury and damage ; but it cannot give him the right to close the alley; and deprive the plaintiffs of the use of it or any part of it.
It is suggested that the object of the plaintiffs in bringing this suit is to enable them to use the alley in question for the benefit of the contiguous property, on the north of which Samuel C. Bump is now the owner; and for this purpose the testimony in the first bill of exceptions was offered. And to show that the plaintiffs could not lawfully use the alley for such purposes, we have been referred to a number of cases, among them are Howell vs. King, 1 Mod., 190; Lawton vs. Ward, 1 Ld. Raym., 75; Skull vs. Glenister, 111 E. C. L., 81; French vs. Marstin, 32 N. H., 316; Colchester vs. Roberts, 4 M. & W., 769.
If this were a suit instituted by the appellee against Bump for an interruption of the appellee’s right to the use of the alley, caused by the unauthorized use of it by Bump for the purposes of the property held under his lease from Williams, these authorities would be applicable; but
In Lawton vs. Ward, and Howell vs. King, the ways claimed were by prescription, the right to which and their extent were limited and fixed by their customary use. Here the right is fixed by the words of the grant, which as we have said includes the use of the alley to the whole extent, and necessarily the free right of entrance to or exit from the north end as well as the south end; provided such entrance or exit is not obstructed by the adjoining proprietor. ■
The circumstance that Samuel O. Bump, one of the plaintiffs, happens to be the owner of the contiguous property at the north end of the alley, in no manner affects the rights of the parties in this suit; and the testimony in the first bill of exceptions was therefore irrelevant and ought to have been .excluded.
The case of Johnson vs. Kennicut, 2 Cush., 153, cited and much relied on by the appellee’s counsel, is not applicable to this case. There the limits of the way were not defined, and the Court held that the party could not complain of partial obstructions at the side; provided he was left in the enjoyment of a reasonable way for the purposes contemplated by the grant, because by the terms of the grant that was all he was entitled to claim. Other cases to the same effect were cited by the appellee’s counsel in the argument, but they need not be referred to here.
We have been referred to the case of Phillips vs. Treeby, decided first by V. C. Stewart, and afterwards affirmed on appeal — reported in 8 Jur. N. S., (p. 1, 1862,) 711 and 999 — which we think fully supports the views we have expressed as to the construction of the lease, and the
Being of opinion that there was error in the instruction given to the jury in this case, and in rejecting the appellants’ prayer, the judgment will be reversed, and a new trial ordered.
Judgment reversed and new trial ordered.
