| N.C. | Dec 5, 1857
The declaration against the defendant was for erecting upon a public road or avenue, a ware-house, so near to the storehouse of the plaintiff as to obstruct his rights, and cause his chimney, when the wind blew, to throw back the smoke into his store-room, and otherwise injure him.
It appeared, in evidence, that the plaintiff erected a storehouse, in 1849, on the side of a certain public road, leading to Ewer's landing, and that the defendant, in 1856, erected a ware-house twenty feet long, twelve wide and nine high, in and upon another road, alleged by the plaintiff to be a public road, leading to the road on the side of which the plaintiff's store-house was erected, one corner of which, was within six and a half feet of the store-house. It also appeared, in evidence, that the road in which the defendant erected his warehouse, was cut out, many years ago, by one Montgomery, for an avenue from his house into the public road, and was known as Montgomery's avenue; that the defendant succeeded Montgomery by purchase, and it was then called Askew's avenue. It was also in evidence, that this avenue had been used by the public, as a near cut, to get into the public road leading by plaintiff's store-house, from the year 1843, until the defendant erected his ware-house.
It also appeared, in evidence, that the defendant, in 1849, sold and conveyed to the plaintiff, by deed, three acres of *64 land, on which the said store-house was situated; the boundaries of which called for the public road above described and this avenue, and embraced, near the store-house, a part of the land which constituted the said avenue. At this point of the description in the deed, is this clause: "Here I reserve the width of twenty feet for my avenue: thence down the said avenue to the sweet gum, the first station, still reserving for ever the width of twenty feet, at least, for my avenue to my house." It was on this width of twenty feet that the ware-house complained of was built.
The defendant contended that the plaintiff was estopped by the operation of this deed, to say that the avenue was a public road, and the plaintiff insisted that the operation of this deed restrained the defendant from using the space reserved for any other purpose than as an avenue.
The Court charged the jury that the plaintiff could not be heard to say, that the avenue in question was public property; that, as between the parties, it was private property, and though the defendant retained it for an avenue, he was not disabled from using it for other purposes. The plaintiff excepted to these instructions. There was a verdict for the defendant, and judgment, and the plaintiff appealed. The legal effect of the deed was to pass the soil of a part of the avenue to the plaintiff, leaving an easement or right of way, called an "avenue," in the defendant. It is clear that such is the legal effect of the deed; for otherwise, why was a part of the avenue included in the deed, and where was the necessity of saying any thing about the purpose for which the defendant reserved an interest in such part?
As the freehold vested in the plaintiff, we do not concur with his Honor in the opinion that the defendant might use it for the site of a ware-house, or for any other purpose than a *65 way. It follows that the plaintiff has a cause of action for the erection of the ware-house. Whether the action should be trespass or case, is not now presented, as the plaintiff is entitled to a venire de novo.
We likewise differ from his Honor as to the other part of the charge. To raise an estoppel, the admission must be certain. Here, there is no direct admission that this part of the avenue was not also a public high-way. There is no inconsistency in supposing that a part of one's avenue may be a public high-way; in truth, whether it was or was not a public high-way was not in the contemplation of the parties. Besides, an estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parties was to make the matter recited a fixed fact, as the basis of their action; as, for instance, in this case, in respect to the purpose for which the reservation is made — to be used as an avenue. So that had there been a recital, "whereas it is not a public high-way," the application of the doctrine of estoppel would have been questionable. In the absence of such a recital an estoppel cannot grow out of a mere inference in regard to a fact that was over and beyond the contemplation of the parties, so far as is shown by the face of the deed.
Gilliam v. Bird, 8 Ire: 286, relied on by the defendant's counsel, has no application. The kind of estoppel there discussed is strictly a mere rule of evidence, adopted to avoid the necessity of tracing back the title where both parties claim under the same person.
PER CURIAM, Judgment reversed, and a venire de novo.