Douglass v. Lehman

• Decision Date: 26 June 1933
• Docket Number: No. 5818.,5818.
• Citation: 62 App. DC 264,66 F.2d 790
• Parties: DOUGLASS v. LEHMAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 264, 66 F.2d 790 (1933)

DOUGLASS v. LEHMAN.

No. 5818.

Court of Appeals of the District of Columbia.

Argued June 7, 1933.

Decided June 26, 1933.

Rehearing Denied September 25, 1933.

George E. Sullivan, of Washington, D. C., for appellant.

George C. Gertman, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

This is an appeal from a final decree of the Supreme Court of the District of Columbia. In the court below appellee was plaintiff and appellant defendant.

Plaintiff is the owner of premises known as 420 East Capitol street, Washington, District of Columbia. He acquired the premises by deed September 1, 1892. Defendant is the owner of the premises 418 East Capitol street, and acquired the same by deed November 9, 1923. The properties adjoin, and plaintiff's property is covered by a two-story frame house, the second story of which covers the entire width of the lot and the first story of which is so constructed that an alleyway nearly three feet wide, about thirty feet long, and about nine feet high is left between the outside westward wall of the first story of the house and the outside east wall of the first story of defendant's house. About two feet five inches of the width of the alleyway is a part of plaintiff's lot. The remainder of the width, 0.36 of a foot or about 4 1/3 inches, is on a part of defendant's lot. Defendant's second story covers the entire width of her lot and the first story all except the 4 1/3 inches embraced in the alleyway. Both houses were erected prior to 1854.

Plaintiff and defendant derived their titles from a common source, namely, from Isaac C. Weed and Nathaniel S. Weed, who together, as tenants in common, held the fee-simple record title to both lots from some time in 1852 until 1854 as to plaintiff's lot, which they conveyed in fee simple together with the buildings, etc., unto one of plaintiff's predecessors in title, and until 1855 as to defendant's lot, when they likewise conveyed it in fee simple together with the buildings, etc., unto one of defendant's predecessors in title.

Plaintiff filed his bill below in February, 1927, in which he prayed for an injunction restraining defendant from in any wise trespassing upon his property by the use of the alleyway; that he be declared to be the sole owner of the alleyway as to the part thereof on his lot; and that his title to the same be quieted of record. Defendant filed an answer and cross-bill, the purpose of which was to obtain a decree declaring and establishing of record a perpetual easement in the use of the alley for the benefit of and in connection with her property.

The case was heard in the court below on the pleadings and on evidence adduced by each of the parties, and the sitting judge, in deciding in favor of the plaintiff, made certain findings of facts by which we are bound. Lawson v. U. S. Mining Co., 207 U. S. 1, 28 S. Ct. 15, 52 L. Ed. 65; Butte & Superior Co. v. Clark-Montana Realty Co., 249 U. S. 12, 30, 39 S. Ct. 231, 63 L. Ed. 447.

The facts found show that the deeds from the two Weeds in 1854 and 1855 contained no reference to any easement in the alleyway; that there is no evidence to show when the houses were erected, but that there is evidence showing the existence of the alleyway as early as 1866, at which time the houses appeared just as they do now; that in 1892 when plaintiff acquired his property there was a gate in the division fence between the two properties immediately in the rear of the alley, which afforded access to the alley to the occupants of defendant's property; that in 1892 plaintiff nailed up the gate and entirely excluded defendant's predecessor from using the alley; that there is no evidence of actual adverse user by the defendant or defendant's predecessor of the alleyway prior to 1892, except such as might be inferred from the construction of the two houses and the existence of the gate in the line fence; and, as to the period between 1892 and 1911, the sitting judge held that the testimony was conflicting as to the use of the alleyway, but that the defendant had not maintained the burden of establishing continuous adverse user. From 1911 to 1923 plaintiff barred defendant's predecessor in title entirely from use of the alley, and from 1923 to the time of trial defendant had used the alley over the protest of plaintiff.

We have examined the evidence, and while we might have reached a different conclusion from that...