Murphey v. Harker

• Decision Date: 01 April 1902
• Parties: MURPHEY v. HARKER.
• Court: Georgia Supreme Court

41 S.E. 585

115 Ga. 77

MURPHEY

v.HARKER.

Supreme Court of Georgia.

April 1, 1902.

DEED—CONSTRUCTION—ESTATE CONVEYED— INJUNCTION—DISOBEDIENCE—CONTEMPT—TITLE.

1. Under a deed which describes a lot as bounded on one side by an alley, and conveys to the grantee the right of "ingress and egress from and to" a given street, no right to erect a permanent structure in or over such alley passes to the grantee, notwithstanding the presence of such structure may not interfere with the use of the alley as a mere passageway.

2. Where one. who owned a parcel of land, and also an alley which separated the land into two city lots, conveyed to a person one of such lots, describing it as extending up to the alley, but giving to the grantee certain rights therein, and then conveyed to another person the other lot, which was described in the deed as being bounded on one side by that line of the alley which was adjacent to the lot first conveyed, the grantee in the second deed acquired under this description the fee in the alley, subject to the rights therein which had been conveyed in the first deed.

3. A deed conveying a described parcel of land, "with the appurtenances, " conveys to the grantee, as appurtenant to the land, the right to the free and unobstructed use and enjoyment of an alley adjoining the property, which the grantor had laid out and set apart for such use, and the fee to which was at the time of the conveyance in the grantor.

4. One who is the owner of a building situated upon a lot adjoining an alley, in which such owner has the right of free and unobstructed use for all purposes incident to the ownership of an abutting lot, is entitled to an injunction to restrain the erection of a struc-ture in that alley which will cause damage to the abutting property, upon proof showing to the satisfaction of the judge that the damage resulting from the erection of the structure would be irreparable. In the present case there was not only evidence authorizing the judge to find that the damages complained of would be irreparable, but it appears that upon the request of the parties the judge himself viewed the premises, and, after so doing and considering the evidence, readied the conclusion that the damages would be irreparable.

5. One against whom an injunction has been granted is bound to obey the same as soon as he is informed of the fact that the injunction has been granted, although he may not have been then served with a copy of the writ.

6. When one who has notice that an injunction has been granted against him, though he has not been formally served with the writ, does an act which is a violation of the injunction, and thus changes the status of the property involved in the case, the judge may, at an interlocutory hearing, or upon an application for an attachment for contempt, require the offender to restore the status as it existed at the time he first received notice that the injunction had been granted.

7. When, in an application to restrain a trespass upon the ground that the damages threatened would be irreparable, the defendant sets up title to the property adverse to that of the plaintiff, or questions the title of the plaintiff, a court of equity will, by injunction, restrain the trespass, and preserve the status until the question of title can be settled at the final hearing; but, where the defendant denies the title of the plaintiff, the trespass will be closely inquired into before the court will interfere by injunction.

8. The foregoing notes deal with all of the questions raised in the present case which require special notice. The conclusions of the judge on all the issues of law decided by him were correct. His findings on all questions of fact submitted to him were amply supported; and the judgment rendered, requiring the defendant to restore the property to the condition in which it was at the time the petition was filed, and enjoining him from altering the status as thus restored until the final hearing, will not be interfered with.

(Syllabus by the Court.)

Error from superior court, Richmond county; H. M. Holden, Judge.

Action by Catherine E. B. Harker against Eugene E. Murphey. From the judgment, both parties bring error. Judgment on main bill of exceptions affirmed. Cross bill dismissed.

W. K. Miller, for plaintiff.

H. C. Roney and M. P. Carroll, for defendant.

COBB, J. Catherine E. B. Harker made her application for an injunction against Eugene E. Murphey, to restrain him from closing up an alley in the city of Augusta, and from erecting a permanent structure therein which would impede the free use of ' the alley. The plaintiff sued in the capacity of executrix of the last will of her husband, Edward W. Harker, and as life tenant in the property abutting upon the alley; the life estate therein being created under the will of her husband. At the hearing an injunction was granted, and to this the defendant excepted.

1, 2, 3. It appears from the record that there was a 12-foot alley between the lot referred to in the plaintiff's petition and a

lot owned by the defendant, and that he was proceeding to erect a building upon his lot, a portion of which would be over the alley above referred to, though the building would not prevent the alley from being used as a passageway; that portion of the building which was over the alley being constructed merely above the same, and such of it as was in the alley not absolutely destroying it as a passageway. The con trolling question to be determined is, has the defendant such an interest in the alley that he can use any portion thereof for the purpose of erecting a building, notwithstanding the building may be so constructed that those who are entitled to use the alley as a passageway may still pass through the same? Both parties derive title from the same source, Robert A. Reid being the common grantor of each. It appears that Reid was the owner of a parcel of land on the corner of Washington and Broad streets, in the city of Augusta. This parcel of land was so located that it could be divided into three lots; two of them having a frontage upon Broad street, and one of them having a frontage upon Washington street On October 18, 1860, Reid conveyed to Henry Myers a lot fronting about 77 feet upon Broad street, and running back 128 feet 4 inches, and which was described in the deed as being "bounded on the north by Broad street; south by an alley of unequal width, extending to Washington street; east by a lot now or formerly owned by the estate of A. Simonette; west by lot of the said Robert A. Reid." This deed conveyed to the grantee the perpetual right, in common with the grantor, his heirs and assigns, to use the alley referred to "for ingress and egress from and to Washington street, subject also, to the privilege hereby reserved by the said Robert A. Reid to himself, his heirs, legal representatives, and assigns, of building over the part of said alley which is adjacent to his lots whenever he or they may deem it expedient, without diminishing the width of said alley, or interfering in any respect with the free use thereof as aforesaid by the said Henry Myers and any person or persons claiming through or holding under him as tenants or otherwise." On February 7, 1862, Reid con veyed to Edmund T, Murphey, who was the ancestor and predecessor in title of the de fendant, that portion of his lot on the corner of Washington and Broad streets lying west of the lot conveyed to Myers, and having a frontage on Broad street of 55 feet, more or less, and a depth of 128 feet 4 inches, more or less, and described in the deed as bounded on the north by Broad street; "south by alley of unequal width, but being 12 feet wide, so far as the lot of land hereby conveyed is bounded by it on the south, " and extending to Washington street of the same width; east by lotowned by Henry Myers; and west by Washington street. The deed also conveyed "the perpetual right, in common with the said Myers, his heirs and assigns, to use said alley, through its whole extent in length and breadth, for ingress and egress from and to Washington street, as by reference to a deed from Robert A. Reid to the said Myers, dated October 1, 18G0, will more fully appear." On August 15, 18G2, Reid conveyed to Samuel Lecky, trustee, all of the remainder of the lot which had not been previously conveyed to Myers and Murphey, this deed describing the land conveyed as bounded on the north by Edmund T. Mur-phey's lot; south by the lot of Emanuel H. Nehr; east by the lot of Alexander Martin, deceased; and west by Washington street. The deed conveyed to the grantee the land described, together "with the appurtenances." The following diagram shows the location of the lots above described:

Lot No. 1, the first lot sold by Reid, will be hereafter referred to as the "Myers Lot, " and the conveyance to him will be called the "Myers Deed." Lot No. 2, the second lot conveyed, will be hereafter referred to as the "Murphey Lot, " and the conveyance to Murphey as the "Murphey Deed." Edward W. Harker, by successive conveyances from Lecky, trustee, and his successors and assigns, acquired title to the lot described in the deed to Lecky, trustee; and this lot will be hereinaf'lor referred to as the "Harker Lot, " and the deed to Lecky as the "Lecky Deed."

Reid having been the owner of the entire parcel of land embraced in the three deeds above referred to, the rights of the parties to the present case in the alley In controversy are to be determined by a proper construction of the stipulations in the various deeds. When Reid sold to Myers, he was the owner not only of the fee in the lot sold, but also the owner of the fee in the alley, and he could determine exactly what interest his vendee should have In the alley. The deed makes the alley the southern boundary of the lot sold to Myers, and therefore title to the alley did not pass to Myers under the conveyance of the lot, and Myers and his assigns were, under the terms...