Burns v. Gallagher

• Decision Date: 02 July 1884
• Parties: BRIDGET BURNS, and others v. JOHN WILLIAM GALLAGHER, and others, infants, by their next friend BRIDGET GALLAGHER, and BRIDGET GALLAGHER,
• Court: Maryland Court of Appeals

62 Md. 462

BRIDGET BURNS, and others v. JOHN WILLIAM GALLAGHER, and others, infants, by their next friend BRIDGET GALLAGHER, and BRIDGET GALLAGHER,

Court of Appeals of Maryland

July 2, 1884

APPEAL from the Superior Court of Baltimore City.

This was an amicable suit brought by the appellees against the appellants for the purpose of determining the question of the right of the former to the use of an alley in the rear of their premises, as a way and as a drain. The case is stated in the opinion of the Court. The following plat will facilitate the understanding of the matters in controversy:

(Image Omitted).

TABLE

The cause was argued before ALVEY, C.J., YELLOTT, MILLER RITCHIE, and BRYAN, J.

Frank X. Ward, for the appellants.

If the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties, ought not to be limited and cut down by the fiction of an implied reservation; and the grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if there were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of the grantor. Suffield vs. Brown, 4 DeG., J. & S., 185; Crossley & Sons vs. Lightowler, Law Rep., 2 Ch. App., 478; Tenant vs. Goldwin, 2 Ld. Ray., 1089.

Where there is a grant of land by metes and bounds, without express reservation, and with full covenant of warranty against encumbrances, there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity.

Where the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may certainly cut himself off from it by his deed, if such be the intention of the parties; and it is difficult to see how such an intention could be more clearly and distinctly intimated than by such a deed and warranty. Carbrey vs. Willis, 7 Allen, 364.

It would be most dangerous to hold that where a deed is silent as to any reservation of a way, the one that is more convenient to use than another way, must exist as a way of necessity. There is no foundation whatever for such a doctrine. Dodd vs. Burchell, 1 Hurl. & Colt., 113; Mitchell vs. Seipel, 53 Md., 274.

A right of way of necessity, can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger. Oliver vs. Hook, 47 Md., 308.

"If a man owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee: Whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that as the right of drainage was not reserved in terms, when it naturally would be, if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the encumbrance." Johnson vs. Jordan, 2 Met., 240; Leonard vs. White, 7 Mass., 8; Grant vs. Chase, 17 Mass., 443; Randall vs. McLaughlin, 10 Allen, 366.

The owner of a city lot must so improve it as to prevent its surface water from annoying an adjacent owner. Bentz vs. Armstrong, 8 W. & S., 40.

The owner of land may at his pleasure withhold the water falling on his property from passing in its natural course on to that of his neighbor, and in the same manner may prevent the water falling on the land of the latter from coming on to his own. Bowlsby vs. Spear, 31 N. J. L., 352; Pettigrew vs. Village of Evansville, 25 Wis., 227; Hoyt, et al. vs. City of Hudson, 27 Wis., 656; Bassett vs. Company, 43 N. H. 573; Swelt vs. Cutts, 50 N. H., 439; Parks vs. Newburyport, 10 Gray, 28.

Edgar H. Gans, for the appellees.

No case has yet arisen deciding the question as to whether such an alley is a necessity. The case of Mitchell vs. Seipel differs essentially from it, for in that case there was an alley just like this, open to the use of the owner of the property; an alley, as the Court say, page 274, such as is "found in almost every part of the city of Baltimore, and was made for the very purpose of affording access to yards and kitchens, which could not otherwise be reached save through the front doors of the houses." The contention there was for a front alley besides. In addition to this, the Court say, on page 263, "nor is the case complicated by any easements of drainage or sewerage, nor does the surface drainage pass through the alley." In this case the surface drainage has passed through the alley for twenty-five years.

Most of the cases are country cases, and throw no light on this question. A house in the city of Baltimore, which has no access to the yard save through the parlor and front door of the house, which has no drainage of any kind, where water must collect and stagnate unless carried away in buckets, where the sink must be cleaned through the parlor, is practically uninhabitable. It could neither be decently lived in, nor sold or mortgaged, at anything approximating its legitimate value. The alley is absolutely necessary for drainage, and strictly necessary, in the rational sense, for all the other purposes connected with the yard, kitchen and sink of a dwelling. Lawton vs. Rivers, 2 McCord, 448; Goodall vs. Godfray, 53 Vt., 222-3; Morris vs. Edgington, 3 Taunt., 31; Watts vs. Kelson, L. R., 6 Ch. App., 175; Batcheldor's Case, 3 N. H., 192; Boone on Real Property, sec. 143, and cases cited.

But Coffay, having bought both lots in 1865, under a written contract, and paid for them, was the substantial and real owner thereof until the appellees' lot passed to Gallagher through Sanders, (Sanders until then retaining the legal title,) in 1866.

This was the real substantial point of severance. At this time Coffay remained owner of the servient estate, and in the grant to Gallagher impliedly granted all apparent and continuous easements, which were at the time reasonably necessary to a fair use of the property granted. There is nothing in the case of Oliver vs. Hook, 47 Md., 301, opposed to this view, as that case had reference only to an ordinary, open and unenclosed way, (page 309,) and ordinary ways of that character are not regarded as continuous. See also Du Val vs. Du Val, 21 Md., 154-5; Janes vs. Jenkins, 34 Md., 7; Kieffer vs. Imhoff, 26 Penn. St., 443; Phillips vs. Phillips, 48 Pa. St., 178, 184.

ALVEY C.J., delivered the opinion of the Court.

This case was tried in the Court below before the Judge without the assistance of a jury; and the finding of the Judge upon the evidence was for the plaintiffs. The finding is general, without the enumeration of the facts found to be established by the evidence; and this Court, of course, has no power to review the finding of the Court below upon the evidence, farther than to determine, upon prayer raising such question, whether there be evidence legally sufficient to be considered. The plaintiffs propounded no legal proposition for the determination of the Court; and the first four prayers offered by the defendants, and which were rejected, were simply to the effect that there was no evidence legally sufficient upon which the plaintiffs could recover; and the fifth prayer of the defendants was based upon what is contended to be the necessary legal conclusion, that upon the conveyances or assignments of title given in evidence, the plaintiffs were not entitled to recover. This prayer was also rejected by the Court.

It is contended for the plaintiffs that their right to recover may be sustained either by an implied reservation of a right to the easement claimed, or by implied grant thereof; but upon which ground the finding and judgment of the Court proceeded does not appear.

The undisputed facts would appear to be these: Thomas McNally was possessed, in 1858 or 1859, by virtue of subleases, of three adjoining lots fronting each twelve feet on the north side of Eager street, in the city of Baltimore, and running back for depth sixty feet to an alley two feet two or three inches wide. These adjoining lots lie between Decker street on the east and an alley three feet wide on the west, and each lot has a building thereon that covers the entire front. The lots may be designated as the western, the central, and the eastern lots; that to the west belonging to McIntyre, the central or middle lot to the plaintiffs, and the eastern lot bounding on Decker street, to the defendants. The back alley at the foot of the lots ran from Decker street to and intersected the three foot alley on the west, which runs out to Eager street. This back alley was fenced on each side, and was used in common by the occupants of all three of the houses or tenements for many years, and was the only way of ingress and egress, to and from...