Lindsay v. James

• Citation: 188 Va. 646,51 S.E.2d. 326
• Parties: LINDSAY et al. v. JAMES.
• Decision Date: 10 January 1949
• Court: Supreme Court of Virginia

51 S.E.2d. 326

188 Va. 646

LINDSAY et al.

v.JAMES.

Supreme Court of Appeals of Virginia.

Jan. 10, 1949.

Appeal from Circuit Court, Princess Anne County; Lawrence W. I'Anson, Judge.

Suit by Elizabeth Stuart James against Katherine D. Lindsay and others, to compel the removal of structures blocking a street and blocking a public way. From an adverse decree, defendants appeal.

Decree affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN and MILLER, JJ.

William L. Parker and Richard B. Kel-lam, both of Norfolk, for appellants.

Willard R. Ashburn and Wm. G. Mau-pin, both of Norfolk, for appellee.

HUDGINS, Chief Justice.

In 1926, Martha Miller Masury subdivided a tract of land lying north of the town of Virginia Beach in Princess Anne county, bounded on the east by the Atlantic ocean, on the south by 51st street, on the west by Holly avenue and Holly boulevard and on the north by 58th street. The plat of the subdivision, called "Ubermeer, " was acknowledged and duly recorded. It shows that the subdivision contains blocksnumbered from 1 to 16, inclusive, four hundred and seventy-five lots, with certain areas laid out as streets, alleys and ways. A rough sketch, not drawn to scale, of the pertinent parts of the plat is filed herewith as a part of this opinion.

All of the lots in Blocks 6 and 7 were conveyed to the Roymar Corporation. On January 24, 1936, it conveyed to Elizabeth Stuart James all of Block 7, lying west of the twenty-foot Way, which includes Lots 8 to 21, inclusive, with a fifteen foot alley in the rear as shown on the sketch.

In the spring of 1936, Roymar Corporation sold all lots in Block 6 to the Surf Beach Club, and in the conveyance, bearing date on August 1, 1937, described the property by the lot and block numbers as shown on the plat of Ubermeer.¹ (See foot note for exact language.)

H. L. Lindsay and Pretlow Darden, president and secretary of the Surf Beach Club, acting for the corporation, in the spring of 1936, before acquiring the deed, began an extensive improvement of the property lying within Block 6. One or more of the buildings erected extended across the twenty foot way, and bath houses or cabanas were built across the east end of 57th street. By deed dated December 31, 1942, the Surf Beach Club conveyed to Katherine D. Lindsay and Pretlow Darden, all the lots in Block 6, and a part of Lot 4, and all of Lots 5, 6 and 7 in Block 7, describing the lots as they appeared on the plat of Ubermeer. Lot 7 in Block 7 adjoins the north line of 57th street and all the lots conveyed in Block 7 front on the ocean and extend west to the twenty foot way.

Mrs. James conveyed to other parties several of her lots in Block 7, but at the institution of the suit owned, among others, Lots 15, 16 and 17, on which she had erect ed two or more dwellings. Her total investment in the lots and improvements in this block is more than $50,000.00. Lot 15, in Block 7, is bounded on the east by the twenty-foot way, on the south by 57th street, and on the north by the fifteen foot alley.

A controversy arose between Mrs. James and Mr. Lindsay over the obstruction of the east end of 57th street. It was alleged that the street was forty feet wide and that thirty-five feet of it was obstructed. Mrs. James claimed that Mr. Lindsay failed to remove the obstructions as he had agreed to do, and so in January, 1946, she instituted suit against the owners praying that they be compelled to remove buildings and other obstructions across 57th street. The respondents named in that suit agreed to remove all their building from 57th street, and upon motion of Mrs. James, the suit was dismissed, but without prejudice to her. The decree of dismissal stated that she might institute further proceedings for relief if she was so advised. Parts of the obstructions in 57th street were removed but some of them were not, and this suit was instituted at Second May Rules, 1946, to compel the removal of the structures partially blocking 57th street, and those wholly blocking the twenty foot way. The trial court entered a mandatory decree requiring respondents to remove the obstructions both in 57th street and in the twenty-foot way. From that decree they obtained this appeal.

Appellants concede that 57th street is a public thoroughfare and that they haveno right to obstruct it. They concentrate their attack upon that part of the decree requiring them to remove permanent buildings obstructing the twenty foot way.

Atlantic avenue, as shown on the sketch, is 100 feet wide, hard-surfaced and smooth-paved, and is the main thoroughfare for north-and south-bound traffic through the town of Virginia Beach to Cape Henry. 58th street is thirty feet wide, hard-surfaced and paved from Atlantic avenue to the twenty-foot way. 57th street, a block south of 58th street, is 40 feet wide, hard-surfaced and paved from Atlantic avenue to the twenty-foot way. 56th street is south of 57th street and is parallel with it, but it is not paved and not open to motor vehicle traffic. The twenty-foot way is hard-surfaced and paved between 58th and 57th streets. It is unimproved from 57th street across 56th street to the middle of Block 5.

It does not appear that either the county or the highway officials have accepted the offer of dedication of the streets and alleys on the plat of Ubermeer. Under these circumstances, the provisions of Code, section 5219, are applicable, the pertinent part of which provides that the fact of recordation "shall operate to create a public easement or right of passage over such portion of the premises platted as is on such plat set apart for streets or other public use * * *." However, the rights of the public are not involved in this litigation, but only the private right of an owner who has acquired a lot in a subdivision, the plat of which shows certain areas laid out as streets and alleys.

The decisions in other jurisdictions are in conflict as to the extent of the easement in the streets and alleys created by grant with reference to a map or plat. It is held in some, jurisdictions that a grantee acquires an easement as to all of the streets shown on the plat, and in other jurisdictions the easement is limited to the adjoining streets and such other streets as are necessary to give the grantee access to a public highway. 28 C.J.S., Easements, § 39, p. 703. A third view, and the one adopted in this jurisdiction, limits the extent of easements of this nature to such streets and alleys shown on the plat as are reasonably beneficial to the grantee, and a deprivation of which would reduce the value of his lot. In any event, such grantee is entitled to an easement in streets and alleys adjoining his lot. Taylor v. Commonwealth, 29 Grat. 780, 70 Va. 780, 783; Cook v. Totten, 49 W.Va. 177, 38 S.E. 491, 87 Am. St. Rep 792; 17 Am.Jur, Easements, sec. 47, p. 958; West's Virginia & W.Va.Dig., Easements, 17(4), p. 726; Sipe v. Alley, 117 Va. 819, 86 S.E. 122; Payne v. Godwin, 147 Va. 1019, 133 S.E. 481; Williams v. Kendrick, 184 Va. 1076, 37 S.E.2d 8; Walters v. Smith, 186 Va. 159, 41 S.E.2d 617; Magee v. Omanskey, 187 Va. 422, 46 S.E.2d 443.

Appellee contends that the decision in Sipe v. Alley, supra, is decisive of the issue. Appellants contend that this decision has been modified by subsequent decisions and that the rule in Virginia is that the easement in question extends only to the streets and alleys laid out on the plat which are reasonably necessary for the use of the owners of the particular lot. Neither of these contentions is quite correct.

In the Sipe case the owner recorded a plat subdividing his tract of land adjacent to the town of Graham, Tazewell county, into lots, streets and alleys. Sipe and others bought 13 lots in section 33, bounded by Greever avenue, Wesley street, Calvin street and Tazewell avenue. Alley acquired a corner lot in this block, bounded by Calvin street, and another lot across the street in another block. He proceeded to obstruct Calvin street between his lots. Sipe and others, who owned lots fronting on Calvin street and within section 33, obtained a mandatory injunction requiring Alley to remove the obstructions. This court, in 117 Va. 819, at page 822, 86 S.E. at page 123, quoted with approval the general rule as follows: "When lands are laid off into lots, streets, and alleys, and a map or plat thereof is made and recorded, all lots sold and conveyed by reference thereto, without reservation, carry with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys necessary to the enjoyment and value of said lots."

While the court in its discussions indicated that it did not think it material for complainants to prove whether or not their use of Calvin street was necessary, it will be noted that there the court was dealing with owners of lots in the same section, and the value of the Sipe property as a corner lot would have been materially affected if the obstructions had been allowed to remain.

A similar question was before the court in Payne v. Godwin, supra , where this court said the case of Sipe v. Alley was a bill for "a mandatory injunction to compel the opening of a street that had never been accepted and upon which all the lots abutted, and it was shown that the street was necessary to the enjoyment and value of said lots; therefore an owner in the same block could not close the street, thus depriving another of his vested right therein. An examination of the Sipe v. Alley case will show that it is not authority to warrant an injunction in the instant case, as the alley over the lots of Godwin was not necessary to the enjoyment by the plaintiff of his lots, as it had never been used in connection therewith, and he had private rights in the streets bounding his lots on two sides and the fee in this alley between his lots."

The facts in Fugate v. Carter, 151 Va. 108, 144 S.E. 483, 484, were that both Fugate, the complainant, and Carter, the defendant,...