Preston v. Siebert, 21 App. D.C. 405

Preston v. Siebert

21 App. D.C. 405 | D.C. Cir. | 1903

Mr. Justice Morris

delivered the opinion of the Court:

When the owners of lot 14 sold the south part of that lot to the appellee, and set apart the right of way for her over the rear 10 feet of the northern part, it is very clear that it was their intention to give a right practically commensurate with-the similar right existing for the benefit of the whole lot over the triangle and the private alley north of it. The width of 10 feet was the same in all the different parcels, and that width was established undoubtedly in order to conform to the dimensions of the public or dedicated alley leading beyond them to the street. The parties had probably good reason to retain the title to themselves and not to dedicate it to the public; but that they were to all reasonable intents and purposes intended to be prolongations of the public alley would seem to be beyond doubt.

It will be noticed that in the first of the deeds of conveyance given in the record, that of Mrs. Brown and Mrs. Phelps, the owners, to Carlisle and Hagner, trustees, the right of way conveyed is specified to be in express words “for the ordinary uses of an alley.” Por some reason not apparent in this record, the conveyance divides lot 14 into two parcels — one, the northern part, of 21 feet front; and the other, the southern part, of 42 feet front; and while it gives to the former a right of way over the triangle and the private alley north of it, it annexes to the latter only a right of way over the private alley, and omits all mention of the triangle. This omission is presumed to have been an inadvertence. There was also an omission of any express grant, as appurtenant to the south part of lot 14, of any right of way over the northern part.

But when Carlisle and Hagner, trustees, came to sell the south part of lot 14, they made practically another subdivision, sold 35 feet front instead of 42, and left the northern part with a front of 28 feet. And they annexed to this south part, aitd granted to the appellee, as'the purchaser of it, “ the free and uninterrupted right of way forever for the purposes of ingress, egress, and regress over the rear ten (10) feet by *413the full width of the north 28 feet front ” of the lot, together with a similar right of way over the triangle and the private alley north of it. But the expression “ for the ordinary purposes of an alley,” which wras used in the deed to themselves, was omitted — whether purposely or not we are not advised. It may be that the words actually used were deemed the ■equivalent of those which were omitted; or it may be that the omission was for the purpose of precluding any possible implication of a dedication of the several spaces to the public, and to reserve them exclusively for private use. And yet there can be no doubt whatever that, so far as the appellee was concerned, the grant of the private way was for the ordinary uses of an alley. For not otherwise would a width of 10 feet have been required.

A light of way of three or four feet in width would have sufficed for the passage of persons; only for carts and wagons was a width of 10 feet required. In fact, it is not controverted by the appellant that the appellee, under her grant, is entitled, by berself, and the members of her family, and her agents, and those who have business with her, to go in and out over the 10 feet reserved for her right of way with wagons and carts and carriages and other ordinary conveyances, and, therefore, to use the space for all the ordinary purposes of an alley. The construction by the appellant of two gates over and across the right of way, one evidently for wagons and other vehicles and the other for persons, is a confirmation by him of the extent of the use to which the appellee was entitled to put the right of way. In this regard there would seem to be no controversy between the parties. The contention of the appellant is that the gates do not unreasonably interfere with the right of way in any respect; the complaint of the appellee is that they seriously interfere with the free and uninterrupted use of the right of way guaranteed to her by her deed.

We do not deem it necessary to follow counsel in their ingenious argument as to whether the expression “free and uninterrupted” is the equivalent of “open;” and whether in the city, as in the country, where it is often necessary to *414fence in stock and to guard a road from intrusion, the construction of gates over a right of way is nothing more than a reasonable precaution, which does not substantially interfere with the right. Every ease probably depends upon its own circumstances, and usage and custom undoubtedly have much to do with the question of the reasonableness of an apparent obstruction. Every gate over a right of way is to a greater or less extent an obstruction; but if the circumstances are such that it constitutes no more than a reasonable protection to property, which all'the parties might well be supposed to have anticipated when the right of way was created, and if it is such an obstruction as does not unreasonably or in any substantial manner interfere with the use of the right of way, a gate should not be regarded as an unlawful impediment to the owner’s enjoyment of such right of way.

But it requires no great force of argument and no citation of authorities to show that, within a large and growing city, where expedition is often a necessary concomitant of action, there can be no free and uninterrupted right of way for ingress and egress, when that right of way is barred by solid wooden gates secured by iron bolts on the inside, and when bolted capable of being opened only from the inside. Eree egress may possibly be consistent with gates so bolted and barred; but free ingress is certainly impossible through such barriers, and tire appellee is entitled to free ingress as much as to free egress. If the appellee having gone forth from her house desired to return by this right of way, it would be effectively closed to her. If wngons came to bring supplies to her house and desired to introduce them through this means of approach to the house, as she is entitled to have done, they would be prevented from doing so until they communicated with the house from the street in front and procured to have the gates opened by some one from the inside. Without the same process she could not have access secured to wagons for the removal of ashes and garbage. Her right of way would not only be obstructed, but virtually destroyed.

It is suggested on behalf of the appellant that the gates *415need not be bolted, although it is admitted that the larger one is kept “ entirely closed all the time, day and night;” and that the smaller gate is provided with a latch which can be readily opened from the outside. Plainly this suggestion is no answer to the appellee’s claim of right. It is admitted that'seven of the ten feet are wholly and continuously barred; and as to them the obstruction is complete. And as to the smaller gate, even though it has a latch to it, yet it is capable of being barred against the appellee at any time, and, if barred, the latch - would be useless. It may be noted also, that, while the appellant’s answer avers that this smaller gate has been kept unfastened during the period of this litigation, to ascertain the rights at law of the appellant, as he says, yet it is very evident that previous to the litigation it had been kept closed “ during the night, and sometimes in the day,” an allegation of the bill of complaint which is not denied by the appellant in his answer.

It is objected, also, on the part of the appellant that wagons and carts may not conveniently turn within the 10 feet of the right of way. But this is not relevant or to the point. They might back out or back in; or they might turn within the space of the triangle and private alley to the north. It is no concern of the appellant whether they can turn or not, provided they do not go upon his lot outside of the 10 feet of the right of way, which, of course, he is entitled to prohibit.

It is conceded that the appellant has sodded over this space of 10 feet reserved for the right of way; and he claims that this is no unlawful obstruction of the right. Assuredly the highways and byways of the world are not sodded; nor are the lanes and pathways over which pedestrians go. Sodding the highway or the footpath, while, perhaps, it is only a minor interference with it, is distinctly an act antagonistic to its usefulness as a highway or footpath, and an assertion of ownership inconsistent with the continued existence of the right of way.

It may be that the parties to this cause can, and should, come to some mutual understanding for the protection and security of their respective interests. Both have substantial *416rights in the premises which should be respected. But the appellant, having taken his property burdened with the appellee’s right of way, must yield to the convenience of the latter, whose right in the premises is paramount and may not unreasonably be obstructed.

We are of the opinion that the decree of the .Supreme Court of the District of Columbia in the premises is right and just, and that it should be affirmed, with costs. And it is so ordered.