19 App. D.C. 440 | D.C. Cir. | 1902
delivered the opinion of the Court: .
This is an action of ejectment brought by the present appellant, William J. Erizzell, against John Murphy, who, since the trial in the court below, has departed this life, and his heirs-at-law have been made parties to this appeal. The declaration is for a piece of ground in the city of Washington, known as and being a part of lot numbered 6. in McWilliams’ subdivision of lots in square numbered 536, as said subdivision is recorded in the office of the surveyor of the District of Columbia, and bounded as follows: — and then follows a description by metes and bounds,— and after such description, it is alleged that in said piece of. ground the plaintiff claims to own a fee simple, and of which he was lawfully possessed on the 5th day of March, 1898, when the defendant unlawfully entered the same and now unlawfully and unjustly detains the same from the plaintiff. The plea of not guilty was entered by the defendant.
• It appears, by the very meager record before us, that the ease was tried in the court below June 18, 1900, when a verdict was entered for the defendant, under the instruction of the court, as we are informed by the agreement of counsel. The record contains no bill of exception signed by the justice before whom the case was tried, but, by an agreement or stipulation entered into by the counsel of the parties seven months after the trial, it is agreed as a fact that the court instructed the jury to render their verdict for the defendant, and that the plaintiff noted an exception;
The case is therefore not properly before this court for review, for want of a bill of exception certifying to this court what was done and ruled on the trial below, and we should in strictness dismiss the appeal or enter the judgment below affirmed; for it is very clear we could not in justice to the court below proceed to review and reverse the judgment upon the state of the record as now presented.
But as the parties, by their respective attorneys, have entered into a stipulation as to the state of the title to the subject-matter of claim upon which the rights of the parties depend, and submit the question of contest upon such agreement, instead of a bill of exception, we shall, with a view of preventing further litigation, express our opinion upon the facts disclosed in the agreement, though the appeal is brought here in an irregular way.
By the agreement just referred to, it is stipulated and agreed, that William D. Cronin was, on the 1st day of Au.gust, 1894, the owner in fee of lots 5 and 6, in Clement McWilliams’ subdivision of lots in square No. 536, and that his father, the prior owner, and from whom he obtained said property, had, during his lifetime, erected upon said lots two houses, and that the house upon lot 5 was so erected that the second story thereof extended over upon lot 6 some 3 feet 6 inches. It is also agreed that said William D. Cronin did, on the 3d day of August, 1894, convey lot 5 in McWilliams’ subdivision of lots in square No. 536, as per plat in book “ N. K,” folio 186, in the surveyor’s office of this District, ‘to Emmerich and Mackall, as trustees, to secure certain indebtedness, together with all and singular the improvements, ways, easements, rights, privileges and appurtenances to the same belonging or in anywise appertaining. It is also stipulated and agreed that said trustees, Emmerich and Mackall, conveyed said lot 5 in said subdivision of lots in square No. 536, together with all and singular the improvements, ways, easements, rights, privileges
It is further stipulated and agreed that the said "William I). Cronin conveyed lot No. 6, in McWilliams’ subdivision of lots in square No. 536, as per plat in book “ N. K.” in the surveyor’s office, together with all the improvements, rights, ways, easements and appurtenances to the same belonging, on the 13th day of May, 1896, to Rawlings and Jones, trustees, to secure a debt, and it is further stipulated that said lot 6 in square 536, etc., was sold by a trustee under a decree of the Supreme Court of the District of Columbia, with the improvements, ways, easements, rights, privileges and appurtenances to the same belonging, to William J. Frizzell, on the 23d day of December, 1897, and was conveyed to him on the 28th day of February, 1898. It is also agreed that said Frizzel testified in his own behalf on the trial that he did not know at the time said lot 6 was sold to and purchased by him that the second story of the house on lot 5 extended over some three feet six inches upon lot 6, the lot purchased by him. It is further agreed that by a correct copy of the plat of the two lots, 5 and 6, it is shown that the second story of the house built on lot 5 extends out and projects over lot 6 three feet six inches, and that the west wall of said house upon lot 5 was one inch west of the line dividing said lots 5 and 6, and to that extent upon the plaintiff’s lot 6.
This action of ejectment could not be maintained for the one inch of ground occupied by the west wall of the house on lot 5, claimed to belong to lot No. 6. Even assuming that, under the facts of this case, such claim could be made by the owner of lot No. 6, such claim is provided for by section 482 of the Revised Statutes relating to the District of Columbia, and that remedy is other than by ejectment. It is provided specifically how compensation may be obtained for an encroachment by a wall, of less than seven inches on an adjoining lot. But we do not desire to be understood as intimating that any claim to that one inch of ground could be maintained by the owner of lot No. 6. We express no opinion upon that subject.
But waiving the question of the right to maintain the action, the more important question is as to the extent and effect of the alleged implied grant of an easement for the benefit of the house on lot No. 5, as against lot No. 6. Both lots are in the same. subdivision and are adjoining each other, and they belonged to the same owner, and the houses on both lots were built by him while he was such owner, and the lot 5, with the building and all improvements, easements, rights and privileges thereto appertaining, were first conveyed and disposed of by the then owner of both lots. By this severance, what was at that time a mere quasi-easement for the benefit of the building on lot No. 5, became a fixed and permanent easement by implied grant, and the owner thus conveying the one lot as the quasi-dominant
The same principle is clearly stated in the ease of Wheeldon v. Burrows, 12 Ch. Div. 31, where the previous cases upon the subject are examined, and the distinction between an implied grant and an implied reservation clearly drawn. In that case it was said, that where upon the grant by the
We find nothing in the agreed state of facts to indicate that the judgment of the court below was not in all respects correct, and we enter that judgment affirmed on the facts agreed to by the parties. Judgment affirmed.