Capron v. Greenway, 74 Md. 289

Capron v. Greenway

74 Md. 289 | Md. | 1891

McSherry, J.,

delivered the opinion of the Court.

By the will of Mrs. Elizabeth A. McCormick a tract of land containing twenty-four acres lying in Baltimore County was devised to F. W. Bruñe and Steuart Brown, in trust for certain purposes, with power to sell, and upon further trust, if unsold before Thomas P. McCormick, a grand nephew of the testatrix, attained the age of twenty-one years, to convey the same to him. In February, 1812, the trustees sold and conveyed to the appellee, Greenway, about four acres lying at the southeast corner of the whole - tract. The southern line of this four acre parcel bounded on a public road called “ Merry-man's Lane," and the western line ran northwardly a *291distance of five hundred and twenty-five feet, leaving between it and the western outline of the whole twenty-four acres a lot of several acres which was subsequently acquired by the appellee. In the deed of February, 1872, from the trustees to the appellee, a private right of way, sixty-six feet in width was reserved, “running north from the above mentioned county road [now Merry-man’s lane] and extending along the western line of said lot” conveyed to Greenway; and it was expressly covenanted that upon the request of the trustees or those claiming under them, or of Greenway or those claiming under him, the right of way “extending as above mentioned” (that is from Merryman’s lane along the western line of Greenway’s lot) should be opened one-half in width — Sr thirty-three feet — on Greenway’s lot, and the other half on the lot held by the trustees; and, when opened, that it should “be for the use and benefit of the lots bounding thereon, and of said respective parties ” to the deed, their heirs, successors or assigns. Shortly afterwards McCormick attained his majority, and the trustees conveyed to him the whole of the twenty-four acres, less the four previously conveyed by them to Greenwav. Two projected streets pass through the twenty-four acres from east to west, between Merry-man’s lane on ¿the] south of the whole tract and Cold Spring lane on the north thereof. These projected' streets are designated twentj^-second and twenty-third streets, but are not laid out, condemned or opened. A plat on file in the office of the County Commissioners shows where they will be located, if ever opened. In November, 1875, McCormick conveyed in fee-simple to the appellee another lot, containing about one acre, immediately adjoining on the north the one purchased from Brown and Bruñe in 1872. The western line of the deed of November, 1875, is a prolongation for one hundred and thirty;-nine feet, to the centre of the pro*292jected twenty-second street, of the western line of the deed of 1872. In the deed of 1875, there is no reservation whatever of a right of way over any portion of the lot conveyed by that deed. In June, 1876, McCormick leased to Col. McIntosh, for ninety-nine years, so much of the twenty-four acre tract as was located south of the centre of the projected twenty-second street, north of Merryman’s lane, west of Greenway’s western line, and east of a lane on the west margin of the whole tract.

In this lease, the eastern line, which is the same as Greenway’s western line, is spoken of as being in the centre of Elm street. In 1878, Col. McIntosh acquired the fee-simple title to the lot leased to him, and in November, 1883, conveyed that lpt to Greenway. In 1881, McCormick conveyed to Mrs. Eliza Lee all the balance of the twenty-four acres not then owned by Greenway and by Col. McIntosh. The appellant claims to hold under a conveyance from Mrs. Lee, though the evidence of her title is not given in the record. In November, 1883, Mrs. Lee owned all of the twenty-four acres lying north of the centre line of the proposed twenty-second street, and Greénway owned all south of that line, and consequently owned both of the lots that abutted upon the right of way described in the deed to him from Brown and Bruñe. The appellee erected a fence across this right of way, and the appellant filed the bill of complaint now before us, praying that Greenway might be required to open the right of way according to the terms and conditions of the deeds referred to. The single question in the case in this: Assuming the appellant is the owner of the land conveyed to Mrs. Lee, is she entitled to use the right of way reserved in the deed of 1872?

Now, the limits of that right of way are clearly defined, and the persons entitled to use it are clearly designated. By the express terms of the deed of 1872, *293the way extended north from Merryman’s lane along the western line of Greenway’s four acre lot, and no farther, and it was declared to he for the use and benefit of the lots binding thereon, and of the parties to the deed, their heirs and assigns. Its northern extremity was coincident with the northern terminus of Green-way’s western line in the deed of 1872, and that point was five hundred and twenty-five feet north of Merry-man’s lane. No portion of the land purchased by Mrs. Lee in 1881, came nearer to the northern limit of this way than one hundred and thirty-nine feet, and by no possibility could she have then reached the right of way without first traversing either Greenway’s one acre lot, over which no right of way was reserved, or Col. McIntosh’s lot which was not subject to any such easement. When the appellee acquired the McIntosh lot, and the one acre lot, he owned all the lots which bounded on the right of way, and as thenceforth no one else could use that right of way without trespassing on the property of others to get to it, it was lawful for Greenway to discontinue it altogether, if he saw fit to do so. He became the owner of the dominant and servient estates, and, there being no one, else entitled to either, they were merged, and the mere easement was extinguished. It is not pretended that the appellant is entitled to the right of way as a way of necessity. The appellee had, in view of these circumstances, a perfect right to construct his fences across the right of way, and his doing so was not a breach of the covenants in the deed of 1872. The Circuit Court for Baltimore County was therefore right in dismissing the bill of complaint, and its decree will be affirmed.

(Decided 16th June, 1891.)

Decree affirmed, ivith costs.