106 Va. 407 | Va. | 1907
delivered the opinion of the Court.
In the deed from Trueheart’s children, dated April 11, 1878, under which the defendant derives title and which is prior in time to the deed under which the plaintiff claims, the property is described as “all that certain lot or parcel of land with a brick tenement thereon lying on the east side of Seventeenth street, between Walnut alley and Franklin street, now occupied by J. Yondelehr, fronting on Seventeenth street eighteen feet ten inches and running back between parallel lines sixty-eight feet two inches to an alley in common, with all the rights, privileges, easements and appurtenances unto the said lot and tenement appertaining, especially the right and privilege of using for full and free access and egress an alley in common, two feet five inches wide, running along the northern boundary of the said property, the right to build above and over the said alley, and that only being reserved to the property lying on the north of said alley, as at present enjoyed, so as not to interfere with its free use as an alley in common, the lot hereby conveyed being
That wall, it is conceded, is a party wall between the storehouses on the front and between the kitchens on the rear of the lots, but it is claimed by the plaintiff that the wall, which was seven feet high and thirteen inches thick and in existence when the plat was made, is not a party wall, and that the entire wall, from the front to the rear of the lots, is upon his land. The contention of the defendant is that the conveyance under which he claims gives him title to the middle of the division wall, and that the wall in its entire length is a party wall.
It is well settled that where a grantor owns land on both ■sides of a non-navigable stream and grants land on one side of it and bounded thereby, his grant carries with it title to a moiety of the bed of the water course, unless a contrary intent is manifest from the grant or conveyance itself. Hayes v. Bowman, 1 Rand. 417, 420. This same rule of construction applies where the land conveyed is bounded by a wall.
Judge Gray, afterward Mr. Justice Gray of the Supreme Court of the United States, in discussing this question, in the case of the City of Boston v. Richardson, 13 Allen 146, 154-5, where the land v;as “bounded with the street,” very clearly lays down the rule on the subject. “The general rule of construction,” he says, “may be thus stated: Whenever land is described ■as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or ■structure referred to as a boundary is the limit of the grant; but when the boundary line is simply an object, whether natu
The conveyance from the children or heirs of James R. True-heart, under which the plaintiff derived title to lot No. 3, also refers to the plat of Joseph I. Pleasants. There is nothing in the conveyance of April 11, 1878, under which the defendant claims, which manifests any intention on the part of the grantors not to convey a moiety of the land upon which the party or division wall was built, except perhaps that the width of lot No. 4 may be a few inches wider than the deed calls for. It is by no means clear that this is so, but if it were it could not affect the construction of the deed, since nothing is better settled than that course and distance must yield to monuments, especially where called for in the deed. Parsley v. English, 5 Gratt. 141, 150, 151; Reusens v. Lawson, 91 Va. 226, 234, 21 S. E. 347.
Applying these rules of construction to the deeds under consideration it is clear that the true line between the plaintiff’s lot and the defendant’s lot is the middle of the party wall designated on the Pleasants plat.
It is well settled that where the owner of houses standing on adjoining lots, having a common wall between them standing in part on each lot, conveys one of such lots his grantee acquires title to one-half of the division wall and an easement for its support as a party wall in the other half, and the owner retains title to the other half although the conveyance is silent as to the rights of the parties in the wall, and if the lot retained by the grantor is afterward sold the same rights subsist between the
But in the case under consideration the rights of the grantee in the deed of April 11, 1878, are not left to implication, but the division wall which extends the entire depth of lots 3 and 4 is described as a party wall, thus expressly creating it a party wall, not only so far as the buildings had then been erected on it, but also as to buildings which might thereafter be built on the division wall extending from the storehouses on the front to the kitchens on the rear of the lots. This being so, it follows ■ that the defendant had the right to erect any building on that part of the wall which could be erected without detriment to the strength of the wall or to the property of the plaintiff.
Having reached this conclusion.in construing the conveyances of the children or heirs of James R. Trueheart, under which the parties respectively derive title, it is unnecessary to consider' whether or not the court erred in giving or refusing instructions, as no other verdict than that which the jury rendered could have • been properly found upon correct instructions.
We are of opinion, therefore, that there is no error in the-judgment complained of, and that it must be affirmed.
Affirmed.