Morgan v. Meuth
| Decision Date | 08 April 1886 |
| Citation | 27 N.W. 509,60 Mich. 238 |
| Court | Michigan Supreme Court |
| Parties | MORGAN v. MEUTH. |
Appeal from Washtenaw.
Sawyer & Knowlton, for defendant.
The bill of complaint in this case was filed to establish complainant's right to an alley in the property known as the "Buchoz Block," in Ann Arbor. The Buchoz block consists of four stores fronting nearly west on Detroit street. The alley in question is about 12 feet wide, and is immediately north and adjoining the block, and extends east to the rear end of the lot upon which the block is built. The Buchoz block is located on the Kenneth-Davidson plat of subdivision of lot 3, in block No. 3, north of Huron street, in range 6 east, in Ann Arbor. The lots in this block are 8 by 12 rods. The Bent house property is located immediately south and adjoining the block. The Meuth lot is located immediately north and adjoining the block. Between the Bent property and the Buchoz block is a strip of land 10 feet wide, reaching the whole distance from Detroit street to the east end of the original lot. North of this strip, and adjoining it, is an alley platted three feet wide. This alley was platted for the use and benefit of the lots composing the Buchoz block, and for no other purpose. From April, 1860 until his death, in October, 1874, Louis R. Buchoz owned, in fee-simple, the Buchoz block, the Bent property, and the land now owned and occupied by the defendant, Meuth.
In March, 1865, Louis R. Buchoz executed a mortgage upon the Bent property to his divorced wife, Caroline Buchoz "with the privilege of a right of way, and of passing and repassing from Detroit street to the east end of said land, over and along such alley or passage-way as may be provided for that purpose, by closing immediately after passing, and keeping closed, such gates as may be placed in it, and not obstructing the alley." On the second day of January, 1868, Buchoz gave the complainant a mortgage covering the land described in the mortgage to his wife except the north eight feet of lot 2, and in addition thereto, embracing the Buchoz block, and the strip between said block and the Bent property, and two rods not contained in the mortgage to Caroline, being the east two rods in width from off the Bent property. No right of way was granted, in terms, by this mortgage. Complainant, at the time of filing her bill, owned the property covered by these two mortgages having acquired the same by foreclosure.
The defendant owns the land lying north and adjoining the Buchoz block, by Buchoz's administrator's deed to A.J. Sawyer, April 19, 1882, and by conveyance from Sawyer to Alfred Buchoz, and from Alfred Buchoz to Anna L Meuth, both of same date as deed to Sawyer. The description of the premises conveyed by these deeds is bounded upon the south by the north line of Davidson's plat, and thereby including the land claimed as an alley by complainant.
The complainant does not claim away of necessity. She puts her right to the use of this alleged alley upon the provision above quoted in the mortgage executed by Louis R. Buchoz to his wife, Caroline. The defendant claims that the alley or passage-way referred to in said mortgage is the 10-foot strip between the Bent property and the Buchoz block.
A careful study of the record, and scrutiny of the maps, deeds, and mortgages accompanying it, satisfy us that the defendant's claim is the correct one. It is necessary to examine into the origin, location, and use of the alley in which the complainant asserts rights under the mortgage to Caroline Buchoz, to determine whether the reference therein is to this alley or to another way. In the first place, the alley in question was never platted, as appears from the records in the office of the register of deeds of Washtenaw county. The first plat we know of embracing the land forming this alley was one dividing block 3 into lots, the lots concerned in this litigation being numbered from the south to the north as 2, 3, 4; the Bent property being on the south third of lot 3, with 8 feet from off the north end of lot 2; the Buchoz block and the Meuth property being on lot 3. Then Kenneth Davidson subdivided the portion of lot 3, known in this controversy as the "Buchoz Block," into lots 1, 2, 3, 4, and 9, fronting on Detroit street, running, from the north, southwesterly, in the order named. Back of lot 1, and running the whole southeasterly and easterly length of lot 3 of the block, was lot 5; and back of lot 2 of the subdivision was lot 6; and back of lot 3 was lot 7; and back of lot 4 was lot 8. Along the southerly line of lots 9, 4, 8, 7, and 6 he platted an alley about three feet wide. The north line of lots 1 and 5 was the south line of what is now claimed to be the alley in question here.
March 1, 1850, Davidson deeded to Charles T. Wilmot lots 1 and 5 of his subdivision, in which deed no mention is made of any alley or passage-way on the north of said lots; but Wilmot is granted therein "the right or privilege of passing and repassing with wagons, teams, or otherwise, from Detroit street along the alley on the south side of subdivisions Nos. 6, 7, 8, and 9, to said subdivision No. 5, and back, until said Wilmot, his heirs or assigns, can or shall obtain a right of way to said subdivision No. 5, north of said subdivision No. 1; but this right of using said alley is to cease and determine whenever such other right of way shall have been obtained." In order to use the privilege thus granted, Wilmot must, of necessity, have used the strip of land between the Buchoz block and the Bent property, which is claimed by defendants to be the passage-way granted in the Caroline Buchoz mortgage. Wilmot never acquired any right of way north of subdivision 1 and 5; and June 18, 1851, deeded said subdivisions, with other lands, to Louis R. Buchoz, who at that time owned the Meuth property and other lands north of said subdivisions.
The alley in controversy here was first created by Louis R. Buchoz in a deed to Enoch Terhune, dated October 22, 1851, conveying lands north of and adjoining Davidson's subdivision, in which he reserved and excepted from said deed the "equal undivided half of the most southerly twelve feet in width of the land above conveyed, which strip of land twelve feet wide is to extend from Detroit street to the east line of said lot 3, along and adjoining on the north line of said subdivisions 1 and 5; and to be kept open and free from obstructions, and used by the parties to the presents, their heirs and assigns, in common, for an alley." It will be noticed that this reservation of this 12 feet for an alley was not a public one, and there is no claim anywhere of any dedication to the public of this alley. It simply was to remain an alley as between the parties to this deed and their heirs and assigns.
Terhune gave a mortgage back, upon the premises so deeded to him, to Buchoz; and by the foreclosure of the same, April 28, 1860, Buchoz became again the owner thereof; thus placing the title to the ground covered by this alley in Buchoz alone, no other person having any rights therein. Buchoz acquired the Bent property June 2, 1851, and the balance of the Davidson subdivision not deeded to Wilmot, December 14, 1850; and from 1860 to his death, in 1874, he was the owner of the Bent property, the Buchoz block, the strip between the Bent property and the Buchoz block, this alley in dispute in this case, and the Meuth lands. During this ownership, and the occupancy and use of these premises by Buchoz and his tenants, the testimony shows that this alley was used by Buchoz and his tenants, and sometimes by the public, with the consent and permission of Buchoz; but no adverse user is shown by any one.
The question now arises, what passage-way did he refer to in the mortgage to his divorced wife of date March 31, 1865? The use for which this passage-way was designed unquestionably was for the benefit of the buildings then standing upon the Bent property, which were a house and brick barn. The house was near the northern line of said property, and a little to the west of the center of the premises. The barn was nearly to the eastern end of the property, and in the south-east corner of the same. The right of way was granted from Detroit street to the east end of said land, along "such alley or passage-way" as may be provided for that purpose. The natural reading of the...
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