148 Va. 189 | Va. | 1927
delivered the opinion of the court.
Appellants filed their bill against the appellee to enjoin him from obstructing an alley over which they claimed a right of way. The trial court refused the
injunction and dismissed the bill at the costs of the complainants. From that decree this appeal was taken.
John E. Hughes owned certain land in the city of Danville, at the corner of Craghead and Newton streets. The property of the Danville Knitting Mills adjoined him on the west. A rough sketch of these properties, not drawn to scale, is hereto annexed.
By deed bearing date March 12, 1917, Hughes con
Afterwards, Hughes died, leaving a will by which his executors were vested with the power to sell and convey his real estate.
The executors divided the “John E. Hughes” lot into two lots and sold them at public auction. The lot at the corner of Craghead and Newton streets has a frontage of 93.5 feet on Craghead street and was purchased by the appellee, Thomas. The other lot had a frontage of 80.5 feet on Craghead street and was purchased by the appellants. The deed from the executors of Hughes to the appellants described the property conveyed as fronting 80.5 feet on Craghead street, and as running back from this frontage ninety-nine feet to the property of the Danville Knitting Mills. It also conveyed to the appellants all the right, title and interest of said Hughes in the Tate and Thomas alley. The deed to the appellants contains this provision:
The deed from the executors to the appellee conveys the property at the corner of Craghead and Newton streets, describing it as fronting 93.5 feet on Craghead street and ninety-nine feet on Newton street. This deed contains this provision:
“It is understood between the parties to this deed that the lot herein described is conveyed subject to the alley rights of the Danville Knitting Mills in ten (10) feet of the lot above described, next to its lot, and that all rights and privileges which the said John E. Hughes, deceased, might have enjoyed in said alley passes with the property herein conveyed.”
It will be observed that both of the deeds by the executors described the property conveyed as running back ninety-nine feet to the line of the Danville Knitting Mills, thus including the ten-foot alley on the rear.
The appellants claim the right to use the alley on the rear in its entire length from the Tate and Thomas alley to Newton street, as appurtenant to the grant to them of their lot.
Hughes in his lifetime, and his executors .after his death, were tenants in common with the Danville Knitting Mills of the alley in controversy. Neither owner of the adjacent land could by his sole deed impair the rights of the other owner, though each could
The owner of land to which there is a right of way appurtenant may convey the land without the appurtenance, if he chooses, and where the way is not a way of necessity, and the appurtenance is excluded by the grant, it will not pass by a grant of the land. In the instant case it is plain that there is no way of necessity, and the grant of the use of the alley in controversy is expressly restricted to that part of the alley which lies immediately in rear of the front lot. No interest is granted to appellants in so much of the alley as lies in rear of the lot of appellee, and he claims none in that part of the alley in the rear of the lot of appellants. The executors had the right and power to sell and convey the property in this way, and the purchasers, as such, have no right to question the wisdom of their action.
The decree of the trial court will be affirmed.
A firmed.