Chapin v. Brown

• Decision Date: 23 July 1887
• Citation: 15 R.I. 579,10 A. 639
• Parties: CHAPIN and others v. BROWN.
• Court: Rhode Island Supreme Court

10 A. 639

15 R.I. 579

CHAPIN and others

v. BROWN.

Supreme Court of Rhode Island.

July 23, 1887.

Bill in equity for an injunction.

Nicholas Van Slyck and Cyrus M. Van Slyck, for complainants. William P. Sheffield, for respondent.

DURFEE, C. J. This bill is brought against the defendant by Daniel A. Chapin as owner, and by John H. Jackson as lessee, of a lot of land in Tiverton, to have the defendant enjoined from maintaining fences across certain avenues, so called, over which they claim a right of way as appurtenant to said lot. The lot is parcel of a larger tract, formerly belonging to William C. Da vol, Jr., Alexander D. Easton, and James T. Milne, who, in August, 1871, caused the same, together with an adjoining tract belonging to them and one Joseph Osborne, who co-operated with them, to be platted, in the language of the bill, "into lots and avenues on one plat, described as 'a plan of house lots surveyed by Benjamin C. Borden for Davol, Easton, and Milne and Joseph Osborne,' and on or about the first day of January caused said plat to be recorded" in the town clerk's office of said town of Tiverton. The bill alleges that there afterwards Davol, Easton, and Milne sold parts of the first-mentioned tract, and described them in the deeds whereby they conveyed them as lots on said plat, and that Davol, Easton, Milne, and Osborne sold parts of the last-mentioned tract, and described them in the deeds whereby they conveyed them as lots on said plat, reference thereto being specifically made; the complainant Chapin being a purchaser by mesne conveyances of one of the lots so sold, and the complainant Jackson lessee thereof under him. The lots are delineated on the plat as intersected by four avenues, three running east and west from a highway on the east to a highway on the west, and called North avenue, Middle avenue, and South avenue, and one running north and south from said North avenue to said South avenue, about midway between said highways, and having no name. The bill avers that the purchasers of lots as aforesaid became entitled, under their deeds referring to said plat, to a right of way over all said avenues as appurtenant to their lots; and prays that the defendant may be enjoined to remove the fences from said avenues, and keep them removed.

The defendant sets up in his answer that he is the owner by various conveyances of the land lying next west of lot 31;¹ that when he purchased the same there was a wall across the east end of North avenue, so called, with a gate therein by which the land was protected from intrusion from the highway, and that this protection was an inducement to his purchase; that Chapin subsequently removed said wall and gate, and that thereupon he, the defendant, erected a fence with gate across North avenue, so called, in the line of the boundary between his land and lot 31, for the protection of his land; that said North avenue was never laid out or fenced out as a street or way, or laid open, or contemplated to be laid open, for the benefit of lot 31; and was never in contemplation of any seller or buyer of any lot in the plat as being in any way appurtenant to lot 31.

The plat adduced in evidence shows that the two tracts of land, as platted, contained 66 numbered lots. Quite a number of them came to the defendant by deeds referring to the plat, designating the lots by their number thereon, and mentioning the avenues by way of boundary or description, and constitute the land belonging to him lying west of lot 31. The complainant Chapin holds lot 31 under deeds referring to the plat, designating the lot by its number, and mentioning North avenue by way of boundary or description. The complainants maintain that, by reason of these sales and conveyances so made, the complainant Chapin acquired lot 31 with a right of way appurtenant thereto over all the avenues delineated on the plat, and the defendant took the lots conveyed to him, and whatever interest, if any, he acquired in the said avenues, subject to said right and all the consequences thereof. The question is whether the complainants' position is tenable.

In Breed v. Cunningham, 2 Cal. 361, decided in 1852, the law is thus laid down: "Where lots are sold as fronting on or bounded by a certain space, designated in the conveyance as a street, the use of such space as a street passes as appurtenant to the grant, and vests in the grantee in common with the public a right of way over said street." And see Smiles v. Hastings, 24 Barb. 44, and 22 N. Y. 217; Cox v. James, 45 N. Y. 557.

In City of Bubuque v. Moloney, 9 Iowa, 450, decided in 1859, the court held the following language, to-wit: "If the owner of land lasts out a town, and exhibits a plan thereof, on which are represented various plats of space or vacant ground, such as streets, alleys, squares, quays, etc., and the lots are sold with reference to the plan, the purchasers of the lots acquire, as appurtenant to the same, every easement, privilege, and advantage which the plan represents as belonging to them. The sale and conveyance imply a grant or covenant to the purchasers that the streets and other public places...