Soott v. Moore

• Decision Date: 22 November 1900
• Citation: 98 Va. 668,37 S.E. 342
• Court: Virginia Supreme Court
• Parties: SOOTT. v. MOORE.

98 Va. 668

37 S.E. 342

SOOTT.

v.MOORE.

Supreme Court of Appeals of Virginia.

Nov. 22, 1900.

BASEMENTS—RIGHT OP WAY—CONVEYANCES— ABANDONMENT—EVIDENCE.

1. Certain adjoining lots were improved, and an alley constructed in the rear of one lot, abutting a street, to the other, connecting it with the street. Such alley was constantly used by the owner as a passage from the adjoining lot to the street and in the bed of the way was constructed a sewer for the drainage of the adjoining lot. The owner devised the lots, describing them as a house and lot and appurtenances. The condition of the premises showed plainly that the alley had been used, and was intended for use, by the occupant of the adjoining lot. Defendant claimed the alley under a conveyance by special commissioners, who included it in their deed conveying the abutting lot; but the decree authorizing the sale described the premises by reference to a deed which referred to them as a certain lot and appurtenances, with metes and bounds as set forth in the owner's will. Held, that defendant acquired title to such abutting lot, subject to an easement in the alley attached to the adjoining lot.

2. Special commissioners for the conveyance of realty of an estate conveyed to defendant a lot abutting "a street by boundaries which included an alley to an adjoining lot. Defendant after the conveyance, closed the alley. The owner of the adjoining lot, without knowledge of the alley being closed, conveyed it to a grantee, who conveyed it to plaintiff; and he, finding it closed, interviewed defendant's agent, who stated that the adjoining lot was entitled to the alley, and that he would move the obstruction when desired. No act of plaintiff was shown indicating an intention to abandon the alley, and, when it became apparent that defendant intended to destroy the alley, suit was brought to restrain him from so doing. Held sufficient to show that the right to such alley had not been lost by abandonment

Appeal from chancery court of Richmond.

Bill by L. M. B. Scott against Julia G. Moore to restrain the latter from interfering with a certain alley connecting complainant's premises with a street. From a decree dissolving a temporary injunction and dismissing complainant's bill, she appeals. Reversed.

Scott & Buchanan and J. H. Ingram, for appellant.

Christian & Christian and Henry W. Anderson, for appellee.

CARDWELL, J. In the year 1835 James Caskie purchased 130 feet of land in the city of Richmond, fronting on Franklin street between Fourth and Fifth streets. Upon It he built four houses, now known as Nos. 400, 402, 404, and 406 East Franklin. No. 400 East Franklin is situated on the northeast corner of Franklin and Fourth streets, and No. 402 is just east of No. 400. At the time of the construction of these houses James Caskie laid off in the rear of No. 400, and separated from it by a brick stable and brick wall, an alleyway 4 feet 6 inches wide, connecting premises No. 402 with Fourth street. This alleyway entered No. 402 at the point where the ancient wall referred to In James Caskie's will as the division line between the two properties, Nos. 400 and 402, ended, to wit, 4 feet 6 inches from the southern line of the adjoining property, thus leaving an opening of this dimension from the alleyway into premises No. 402. There was a gateway at each end of the alley; 1. e. at its Fourth street entrance and its entrance into premises No. 402. This alleyway was used by the occupants and owners of No. 402 at pleasure up to and until the obstruction of the same complained of in this suit. It seems to have been of no use to the owners or occupants of No. 400, as this property had a private alleyway of its own connecting its rear premises with Fourth street. In the bed of the alleyway connecting premises No. 402 with Fourth street, James Caskie constructed a sewer for the drainage of No. 402 and the two properties on the east thereof owned by him, which sewer was, and is now, the only means of drainage from No. 402. The owner of No. 400 had no occasion to use this drainage, as, that property being situated immediately on the corner of Franklin and Fourth streets, the sewerage connections were direct with the public sewer in Fourth street.

James Caskie died in the year 1866, and by will left No. 400 East Franklin, with appurtenances, to trustees for the benefit of his son James A. Caskie's family; No. 402 East Franklin, with appurtenances, to his son John S. Caskie; and Nos. 404 and 406 East Franklin to other of the testator's children. But with these two last-named properties we are not concerned.

John S. Caskie died in the year 1869, and left the property No. 402 East Franklin to his daughter Mrs. Dr. Burfoot Mrs. Bur-foot owned this property up to 1891, when she conveyed it to R. Carter Scott, who in 1895 conveyed it to his wife, Mrs. L. M. B. Scott, the complainant in this suit.

The property No. 400 East Franklin was held by trustees up to 1870, when it was conveyed by Isham Keith, substituted trustee, to John G. Moffet. Moffet died about the year 1884, and his estate was settled under the supervision of the chancery court of the city of Richmond in the suit of Moffet's executors against Moffet and others. In that suit No. 400 East Franklin was sold under decree of court by special commissioners, and purchased by Thomas J. Moore for his wife, Mrs. Julia G. Moore, the defendant to this suit. This sale was confirmed on October 17, 1885, and deed executed to Mrs. Moore in 1887. The special commissioners had a plat of No. 400 East Franklin made prior to its sale or its second advertisement, —there being no bidders at the first offering of the property, —which plat shows the property as fronting 32 feet 4 inches on Franklin, and running back on a parallel line with Fourth street 118 feet 4 inches, which brings this latter line to the end of the brick wall referred to in James Caskie's will as the dividing line between Nos. 400 and 402, and to the south line of the alleyway in rear of No. 400. The second advertisement of this property by the special commissioners described it as being of the dimensions given in the plat referred to, which did not include the contested alleyway; but when the commissioners came to make a deed to Mrs. Moore, the purchaser, from some cause not explained they described the property as running back on a line parallel to Fourth street 123 feet 6 inches, which includes the contested alleyway. The decree of the court under which the commissioners acted described the property only in general terms, as "fronting 27 feet, more or less, on Franklin [street], and being the same real estate conveyed to John G. Moffet from Isham Keith, subtrustee, dated, " etc.; and the deed from Keith, trustee, to Moffet, described it as "that certain house, lot, and appurtenances on the northeast corner of Franklin and Fourth streets, in the city of Richmond, with metes and bounds as set forth in the will of James Caskie, deceased, to which reference is made, " etc.

The fourth clause of the will of James Caskie describes the property now No. 400 as "the house and lot and appurtenances at the northeast corner of Franklin and Fourth streets, " and the seventh clause describes the property now No. 402 as "the house and lot and appurtenances on Franklin street, adjoining that heretofore given * * * [1. e. No. 400]; and the wall separating the two lots In the rear, extending in a straight line to Franklin street, shall be the division line between them."

In 1885 Mrs. Moore, before the sale of the property No. 400 East Franklin to her had been confirmed, and before she had paid the purchase money therefor, moved on the premises, and had the gates at either end of the alleyway now in dispute nailed up, and later (some time in 1889) she or her husband had the ancient dividing wall spoken of in James Caskie's will extended across the alley, by adding thereto a wall of much narrower width; but all this was done without the consent or knowledge of Mrs. Burfoot, the owner, or her tenant, of premises No. 402. During the summer of 1898 Mrs. Moore commenced excavations in the rear of her premises for the purpose of building thereon flats fronting on Fourth street; and, in addition to the dimensions of the lot she owned, it became apparent that it was her intention to occupy this now disputed alleyway, and to permanently obstruct it with a brick building, the foundation of which would necessarily involve, as is contended, a destruction of the drainage of the rear of premises No. 402, its sewerage connection with Fourth street, and the lateral support of the ancient dividing wall between the two premises, whereupon Mrs. Scott, the present owner of premises No. 402, filed her bill in the law and equity court of Richmond city, setting forth substantially the facts above stated, and praying for an injunction restraining the defendant, Mrs. Moore, from further prosecuting her said work, so far as it interfered with the alleyway and sewer connection of premises No. 402 with Fourth street, and the lateral support of the dividing wall referred to in James Caskie's will, which injunction was granted.

The judge of the law and equity court, being so situated that he did not deem it proper for him to hear and decide the case, requested Judge Wellford, of the circuit court of the city of Richmond, to preside; and upon the hearing of the cause upon the bill and answer and exhibits therewith, together with the depositions taken on behalf of both complainant and defendant, Judge Wellford refused to dissolve the injunction, whereupon the defendant's counsel took the deposition of James A. Caskie on behalf of the defendant, and, without notice to complainant or her counsel, approached Judge Wellford and requested him not to preside further in the case, as their client believed that he was prejudiced against her interest. Under these circumstances Judge Wellford, against the protest of complainant's counsel,...