Glenn v. Davis

• Decision Date: 15 February 1872
• Citation: 35 Md. 208
• Parties: WM. WILKINS GLENN v. ALLEN BOWIE DAVIS, Trustee, and others.
• Court: Maryland Court of Appeals

35 Md. 208

WM. WILKINS GLENN v. ALLEN BOWIE DAVIS, Trustee, and others.

Court of Appeals of Maryland

February 15, 1872

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., BRENT, ALVEY, and ROBINSON, J.

Thos. W. Hall, Jr., and S. Teackle Wallis for the appellant.

In no proper sense of the word, can both of said houses be said any longer to """endure."

It is upon the duration of both houses, not of one, or of either of them, that the right to remove the division wall is made to depend. Gale on Easements, 557.

If by "endure" be meant to "last" in the sense of preserving its identity, to be, as was argued in behalf of the appellees in the Court below--" alter et idem, just as any person is compared to himself many years before," in this sense neither of said houses can possibly be said to endure. There is no parallelism between the preservation of the same identity in the case of an animal or vegetable through the several stages of growth and development, and the identity of a house, which, after the alteration and renovation of every part, remains the same only in respect of identity of location. There is no limit in time to the duration of a house, if its identity is not affected by the gradual and successive renewal and substitution of every part of it. According to this argument the houses may endure forever.

If however, by "endure" is intended to last, in the more limited and qualified sense of the rule laid down in Dowling vs. Hennings, 20 Md., 179, viz "as capable of continued safe and beneficial occupation," neither in this sense can both of said houses be said to endure. By "beneficial occupation" is, of course, understood occupation which is beneficial, with reference to the value of the site occupied, and the revenue capable of being derived therefrom, if judiciously improved, as an investment, and not as a mere speculation.

There can be no pretence of prescriptive right in this case based on the continuance of said walls or any use or easement connected therewith, because the very stipulation relied upon in said ancient deeds, recognizes an existing deviation of said walls from the true dividing line, and reserves the right of adjusting the same at some future time, which time the appellant insists has now arrived.

The purchase of the term and the merger being the voluntary act of the reversioners, and due regard being had to the dignity and importance (according to the law of Maryland) of an estate for ninety-nine years, renewable forever, as distinguished from other and lesser terms, the reversioners and the appellees after them, are bound by the covenants and conditions of the agreement between the Chappells and Boehm, which amount to an express abrogation of the stipulations in the ancient deeds, and beneficially to all parties. The common law doctrine of merger will not be allowed in a Court of Chancery to work inequitably. 3 Greenleaf's Cruise, 581-583; 2 Smith's Real and Personal Prop., 596, (or 1 vol., 446, margin, Lib. Ed.;) 2 Preston Shepp. T., 285, 286; 4 Kent's Comm., 102; Tulk vs. Moxhay, 2 Phill. Ch., 777.

There is nothing in the chancery proceedings for the partition of the estate of William Wilkins, to which this appellant was a party, and through which the appellees derive title, which can operate as a bar or estoppel in pais to the assertion by this appellant of his rights as an adjoining proprietor. He is not impugning or seeking to impugn the title of the appellees, but only to enforce a proper construction of a stipulation in ancient deeds, which are the common source of title for both of them, and which stipulation for the reason already assigned, this appellant holds to be no longer operative. The case of Stallings vs. Ruby's Lessee, 27 Md., and other cases referred to by the appellees' counsel on this head, are wholly inapplicable.

By reference to the descriptions in the original deeds and to the dates thereof, it will be seen that the deed from Waesche to Boehm (under whom appellant derives) is the elder deed, and that in the deed from Waesche to Sweetser, appellees' predecessor, the front line of the appellees' lot is made to run to the lot of the appellant as a call.

Frederick W. Brune, for the appellees.

The argument of the counsel for the appellees was mainly addressed to the facts of the case.

On the subject of partition walls, he referred to Dowling vs. Hennings, 20 Md., 183-185, and cases cited; Richards vs. Rose, 9 Exchequer, 218; Partridge vs. Gilbert, 15 N. Y., 601; Eno vs. Del Vecchio, 4 Duer, 53; Sherred vs. Cisco, 4 Sandf. Sup., 480.

On the question of estoppel, he cited Funk vs. Newcomer, 10 Md., 316; Alexander vs. Walter, 8 Gill, 251; Stallings vs. Ruby's Lessee, 27 Md., 156.

As showing that the agreement on the part of the Chappells with Boehm did not bind the reversioners, he relied on Washburn on Easem'ts, 459; Webster vs. Stevens, 5 Duer, 553.

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

This is an appeal from a decree of the Circuit Court of Baltimore city, passed upon bill, answer and proofs, confirming and continuing, with certain modifications, an injunction before issued; restraining and prohibiting the appellant from removing an alleged partition wall, between the premises owned by him, and those contiguous thereto owned by the appellees, on the north side of Baltimore street, between Charles and St. Paul streets, in the city of Baltimore.

It appears from the record that in 1823, Frederick Waesche owned both parcels of ground; and by deed dated the 18th day of March, 1823, conveyed the easternmost lot to Charles G. Boehm, under whom the appellant claims; and by deed dated the 6th of January, 1825, conveyed the other or westernmost lot to Samuel Sweetser, under whom the appellees claim.

The deed from Waesche to Boehm contains the following provisions: "Reserving however to the said Frederick Waesche, his heirs and assigns, the use and benefit, in common with the said Charles G. Boehm, his heirs and assigns, of the alley, of the width of three feet or thereabout, and extending back about forty-five feet, as the same is now opened, between the house erected on the ground above described, and the house of said Frederick Waesche to the westward thereof, and adjoining thereto. It being the understanding and agreement of the said parties hereto of the first and third parts, that the present dividing and partition wall or walls between the said houses, shall, notwithstanding a deviation of the said wall or walls from the true dividing line between the ground above described, and the adjoining ground of the said Waesche, remain undisturbed, so long as the said houses shall endure." The subsequent deed from Waesche to Sweetser contained the same provision mutatis mutandis, with respect to the wall, and the use of the alley.

At the time of the deed to Boehm, there stood upon the lots two dwelling houses, separated to the height of the first story, by an alley about three feet wide, by which access was gained to the back yards of the two houses; and above that, by a wall nine inches thick. The second story of the westernmost house extending over the alley to this nine inch wall, which was the west wall of the easternmost house; being the dividing or partition wall referred to in the deeds.

We consider it very clearly established by the evidence of the surveyors, and the plats showing by actual measurement the location of the lots described in the deeds from Waesche to Boehm and to Sweetser, that the wall in question is wholly within the lines of the lot conveyed to Boehm, and stands upon the ground owned by the appellant. The deeds themselves recognize a probable deviation of the dividing wall from the true dividing line between the lots, and contemplate an adjustment of the same at some future time. This the appellant now claims the right to do; and was about to pull down his old house and remove the nine inch wall, for the purpose of building on his lot a large and substantial warehouse, of a style and character which he considers suitable to the place and commensurate with the present value of the property. This right is denied by the appellees, who insist that the old dividing wall which still forms the eastern wall of their house shall remain undisturbed.

One of the grounds relied on in their bill of complaint, is that their title being derived under certain proceedings in a Court of Chancery, for the partition of the estate of William Wilkins, to which the appellant was a party; he is thereby precluded and estopped from denying their title to the whole lot of ground with the improvements thereon as it had been held and occupied, extending to and including the use of the dividing wall in question. In our opinion there is nothing appearing in the chancery proceedings to support this position. The appellant is not seeking to impugn the title of the appellees to the property acquired by them under the partition; they took thereby the lot of ground which had been conveyed by Waesche to Sweetser, with the same right to have the east wall continued as an easement on the land of the adjoining proprietor, which Waesche retained under his deed to Boehm. The appellant, having acquired title to the lot conveyed to Boehm, is not estopped from maintaining, either that by subsequent agreement or acts of the parties interested, the easement has been extinguished or abandoned or that by the true construction of Waesche's deed it has ceased to exist. These were the conditions belonging to, and inherent in the title acquired by the appellees under the partition, and it is therefore no impeachment of their title, for the appellant to insist that these...