Oberheim v. Reeside
| Decision Date | 23 June 1911 |
| Citation | 81 A. 590,116 Md. 265 |
| Parties | OBERHEIM et al. v. REESIDE et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City, in Equity; Henry Stockbridge, Judge.
Suit by Charles Oberheim and others against Oliver H. Reeside and others. Bills dismissed, and plaintiffs appeal. Reversed and remanded.
George W. Dexter and William G. Towers, for appellants.
Alfred J. O'Ferrall, for appellees.
Argued before BOYD, C.J., and PEARCE, BURKE, and URNER, JJ.
The appellants are owners of renewable 99-year leasehold estates in four lots of ground fronting on North avenue, in Baltimore city, indicated, respectively, by the numbers 21, 22, 25, and 26 on the following plat, which was used in the case for the purposes of illustration:
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The lots in question are subdivisions of a parcel of land which was formerly owned in fee by Alfred J. Ulman, and which comprised all of the block shown on the plat, except the two lots at the western end. On March 14, 1899, Ulman conveyed in fee the southern portion of his land to Elias A. Blackshere who subdivided it into the lots represented by numbers 3 to 26, inclusive. These were demised by Blackshere for the term of 99 years, renewable forever, to Marvin H. Murray, on January 24, 1900, and the latter erected on the lots a row of 24 dwelling houses. In the deed from Ulman to Blackshere, the rear line of the ground conveyed, running 333 1/2 feet from the eastern limit of the church property shown on the plat to the western side of Monroe street, was described as binding on a 10-foot alley "here laid out," and the grant included the use of this alley "in common," "together with the use of an alley 10 feet wide to be laid out by Alfred J. Ulman extending northerly parallel to Payson street from the northwest corner of the above lot to Herbert street." These alleys are outlined on the the plat. The lease from Blackshere to Murray conveyed the subdivided lots, together with the improvements, rights, and appurtenances, and the use in common of "an alley 10 feet wide to be laid out by Alfred J. Ulman to Herbert street, as mentioned in" the preceding deed. By mesne conveyances the four lots first mentioned, and the rights and appurtenances thereto belonging, were acquired by the appellants.
About the year 1906, the appellees became the owners of the northern portion of the Ulman land fronting on Herbert street. Their deed is not in the record, and the precise date of their acquisition of the property does not appear; but it is admitted that their title was derived through Ulman. In March, 1907, they began to erect upon the land a row of 20 dwellings. The western most house was located across and completely occupied the northern end of the space provided in the deed from Ulman to Blackshere for the 10-foot alley extending to Herbert street. A fence was constructed by the appellees along the rear or southern line of their lots, and this was projected across the southern terminus of the alley space, which was then entirely obstructed at both ends. The appellants have sought in this suit to prevent the completion of the obstructions, and to compel their removal.
It appears without dispute from the record that the alley extending from Monroe street on the east to the western end of the original Ulman land is too narrow to admit of the turning of teams, and that the outlet provided to Herbert street on the north is therefore essential to the use of the alley for its intended purpose as a means of access to the rear of the appellants' premises for garbage carts delivery wagons, and other vehicles. The bill of complaint accordingly charges that the structures in course of erection by the defendants have destroyed the easement to which the plaintiffs claim to be entitled under the grants referred to as appurtenant to their respective premises. The answer of the defendants neither admits nor denies the allegations of the bill as to the derivation of the plaintiffs' title. It denies, however, the plaintiffs' right to the use of the ground in controversy for the purpose of an alley, and asserts that no alley has ever been opened or constructed through the property upon which the buildings of the defendants were being erected, and that their land was not subject to any rights of way.
There was some conflict in the evidence as to the extent to which the area provided in the Ulman deed for the alley extending to Herbert street had been used for that purpose. It was testified by several witnesses that this space, though not graded or paved, has been regularly traveled by teams making deliveries and collecting material at the rear of the lots binding on the alley with which the one in controversy connected. There was other testimony to the effect that a part of the space intended for the alley had been obstructed for a number of years by deposits of building stone, and that it had never in fact been opened or used as a way. But it was shown by the witnesses for the defense that, prior to the erection of the defendants' row of houses, the whole of the ground lying between the southern tier of lots and Herbert street was vacant and uninclosed, and that this open space was customarily used by teams having occasion to visit the rear of the plaintiffs' premises and the other lots fronting on North avenue. It was disclosed by the evidence that the grade of the lots abutting on Herbert street, before the improvements by the defendants, was from one to five feet higher than that of the street. There appears to have been some excavation and grading in connection with the alley parallel with Herbert street, but there was no work of this kind ever done upon the bed of the alley now in dispute.
The main theory of the defendants is that the right of those deriving title from Ulman to the use of the last-mentioned alley depended upon its being "laid out," in the sense of being constructed and opened as an alley, by the original grantor of the easement. It is contended that the language, "together with the use of an alley 10 feet wide to be laid out by Alfred J. Ulman," amounted to nothing more than a personal covenant, binding the grantor alone, to establish a way appurtenant to the land conveyed, and that this obligation, not having been performed by the grantor during his ownership of what was proposed to be the servient estate, is not now enforceable against the present owners of the property. This contention does not give due consideration to the important fact that the Ulman deed expressly grants the use of the way as appurtenant to the land since acquired by the plaintiffs. If the phrase "to be laid out," upon which the defendants rely, is to be construed as a covenant to make the defined area serviceable as a thoroughfare, and if the contractual duty was not actually performed, such a default could not impair the efficacy of the formal grant of the use of the ground for the purpose indicated. An "alley" is simply a narrow passageway. 1 Words and Phrases, 342. It may exist without any work of construction being done upon its bed; and an easement in an "alley 10 feet wide" may undoubtedly be granted and be operative, even though it be described as extending over ground not previously used for that purpose. It is perfectly apparent that the right thus conveyed in this case was one of great convenience and value to the property to which it was attached, and that it was absolutely necessary to be secured, in order that the alley first mentioned in the grant should be available at all for its intended uses. It would not be a reasonable construction of the terms of the conveyance to hold that the distinct grant of the easement could be defeated by the neglect of the grantor to prepare the alleyway for travel in accordance with his agreement.
It is doubtless proper to conclude that the words "to be laid out by Alfred J. Ulman," as used in his deed, imposed upon him some duty in reference to the improvement of the alley. The term "lay out," as ordinarily employed in such connections, has been judicially defined to mean the adoption of outlines or location, and not the work of construction or improvement. 5 Words and Phrases, 4037; Hough v. City of Bridgeport, 57 Conn. 290, 18 A 102; Foster v. Boston Park Com'rs, 133 Mass. 321; Gaines v. Hudson Co. Ave. Com'rs, 37 N. J. Law, 14; Zinc Co. v. City of La Salle, 117 Ill. 417, 2 N.E. 406, 8 N.E. 81. In the present case, the deed itself "laid out" the alley, within the meaning just stated, by clearly defining its location; and hence it is probable that there was something further contemplated to be done by the grantor in this regard for the benefit of the grantee and his assigns. But to hold that the easement must be lost altogether,...
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