Reiver v. Voshell

• Decision Date: 15 January 1932
• Court: Court of Chancery of Delaware
• Parties: HYMAN REIVER AND ETHEL D. REIVER, his wife, REYNOLDS WIX AND ALICE N. WIX, his wife, DANIEL HORGAN AND KATHRYN MARIE HORGAN, his wife, FRANK L. SCOTT AND IDA SCOTT, his wife, FRANK D. WALKER, EMMA M. STIRLITH, LAURA K. ECKER, CLAYTON R. JARMON AND ELIZABETH F. JARMON, his wife, JOHN A. PRICE AND GEORGIANNA M. PRICE, his wife, WILLIAM E. BEDWELL AND HERBERT H. WHITE, citizens and residents of the State of Delaware, v. AUGUSTUS VOSHELL AND MARY E. VOSHELL, his wife, citizens and residents of the State of Delaware

158 A. 366

18 Del.Ch. 260

HYMAN REIVER AND ETHEL D. REIVER, his wife, REYNOLDS WIX AND ALICE N. WIX, his wife, DANIEL HORGAN AND KATHRYN MARIE HORGAN, his wife, FRANK L. SCOTT AND IDA SCOTT, his wife, FRANK D. WALKER, EMMA M. STIRLITH, LAURA K. ECKER, CLAYTON R. JARMON AND ELIZABETH F. JARMON, his wife, JOHN A. PRICE AND GEORGIANNA M. PRICE, his wife, WILLIAM E. BEDWELL AND HERBERT H. WHITE, citizens and residents of the State of Delaware, v. AUGUSTUS VOSHELL AND MARY E. VOSHELL, his wife, citizens and residents of the State of Delaware

Court of Chancery of Delaware, New Castle

January 15, 1932

BILL FOR INJUNCTION to restrain the defendants from using a certain alley. The complainants are all but one of several owners of lots with dwellings thereon erected, located on the southerly side of Twentieth Street, in the City of Wilmington, and lying westerly from Tatnall Street. There are twelve such lots. The dwellings are built in a row. The two side walls of all except the end dwellings are party walls. The end dwellings have of course only one party wall. All of the lots have a frontage of nineteen feet, two inches on Twentieth Street, and a depth (except No. 122) parallel with Tatnall Street of eighty feet, abutting in the rear upon an alley fourteen feet, seven inches wide, opening into Tatnall Street. No. 122 West Twentieth Street has a depth of ninety-four feet seven inches, and the alley comes to a dead end at the easterly line of this property.

The deeds conveying title to each of the lots on West Twentieth Street contain the following:

"Together with the right, use and privilege of said driveway for automobiles and other traffic in common with others entitled thereto forever."

The defendants, as tenants by the entirety, own No. 105 West Nineteenth Street. This lot runs parallel to Tatnall Street back towards Twentieth Street and ends upon a three foot alley which skirts along the southerly side of the fourteen foot seven inch alley above mentioned.

The fee simple title to the fourteen foot seven inch alley is in Charles H. Ten Weeges. He has by formal deed granted to the defendants, in consideration of two hundred dollars, a right of way over said alley in language the same as that contained in the deeds to the complainants.

The following plat will make clear the foregoing statement:

[SEE ILLUSTRATION IN ORIGINAL]

All the land now embracing the driveway and the lots numbered 100 to 122 West Twentieth Street, inclusive, was owned by Mr. Ten Weeges. He laid out the alley.

Heard on bill, answer and stipulation of solicitors.

Decree for the complainants.

Horace G. Eastburn and John B. Jester, for complainants.

Aaron Finger, of the firm of Richards, Layton & Finger, for defendants.

OPINION

THE CHANCELLOR:

The solicitors for the complainants have argued this case on the assumption that the facts show a case of the owner of a vacant plot of land laying the same out in twelve building lots, each abutting upon a fourteen foot, seven inch alley carved out of the rear of the plot, erecting on the plot a solid row of twelve adjoining houses with basement garages conveying the houses and lots to several grantees together with an easement over the alley for automobiles and other traffic in common with others entitled thereto forever, the owner of the original plot retaining in himself the title to the fee of the bed of the alley, and thereafter selling to another, whose title is derived from a stranger, a right of way over the alley equal in terms to that enjoyed by the grantees from him of the houses and lots in his development.

The bill, answer and stipulation fail to show by direct averments that such was in fact the case. Why the solicitors for the complainants should have omitted to set up their case in that important particular by allegations or proof of a direct and positive nature, I am at a loss to understand. Their brief shows that they regard the case to be of the sort just stated. Yet the court has been compelled to glean the field of facts with painstaking care in order to discover such a case. Inasmuch as the complainants have argued the case on the assumption that it is such a one and the defendants have done likewise, I shall draw the conclusion from rather slender inferences that the fact situation is as the parties have assumed it to be in their arguments. If the conclusion in this regard is seriously questioned, an opportunity will be afforded to the defendants to be heard touching the matter before a final decree is entered, to the end that the court may be set right if its conception of the case as apparently accepted by all the parties is an erroneous one.

I shall proceed then to discuss the case on the assumption that its facts are as the opening paragraph of this opinion sets forth.

The defendants correctly contend that "nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains with the grantor the right of full domain and use of the land, except so far as a limitation thereof is essential to the reasonable enjoyment of the easement granted. * * * Since a private right of way carries with it by implication only such incidents as are necessary to its reasonable enjoyment, the grant of such a right, which is not exclusive in its terms, and which can be reasonably enjoyed without being exclusive, leaves in the grantor the right of user in common with the grantee." This language is found in 9 R. C. L., p. 797. It is expressive of the general rule. The absence of the element of exclusiveness, it is to be noted, is essential for the continuance of the grantor's dominion as owner of the fee.

In this case there was no express grant by Mr. Ten Weeges of the fee to the bed of the alley. The doctrine of those cases (of which Saccone v. West End Trust Co., 224 Pa. 554, 73 A. 971, 24 L. R. A. (N.S.) 539, cited by the complainants, is an illustration) which hold that, if the premises conveyed are bounded by the grantor upon an alley owned by him, the grantee takes to the middle of the alley, has no application here, for the reason that the deeds to the complainants run only to the northerly side of the alley. Gray v Kelley, 194 Mass. 533, 80 N.E. 651; Clayton v. Gilmer County Court, 58 W.Va. 253, 52 S.E. 103, 2 L. R. A. (N.S.) 598; White's Bank v. Nichols, 64 N.Y. 65. Where the edge of an alley is the boundary, there is no room to contend that the grantee takes beyond the line of the alley's margin, for the reason that the deed can convey no more than lies within the lines designated.

The complainants in this case cannot, therefore, base any claim of relief upon the idea that the description in their deeds included any part of the bed of that portion of the alley lying immediately in the rear of their respective properties.

The deeds to the complainants did not in terms provide that the easements therein granted should be exclusively enjoyed by the holders of the lots laid out in the development. If there is any element of exclusiveness in favor of the lot owners, it is to be derived, not from the terms of the deeds, but from the facts and circumstances attending the act of Mr. Ten Weeges in laying out a scheme of development of his plot by dividing it in the manner shown on the plan delineated in the foregoing statement of facts, and following this by the construction of the houses and the conveyance of them to the complainants or their predecessors in title. There can be no doubt but that the alley was laid out for the benefit of the Twentieth Street properties. Each of the houses (except No. 122) was built for the accommodation of an automobile in a basement garage with a concrete runway leading to the alley. Mr. Ten Weeges is under no obligation to keep the alley in repair suitable for the enjoyment of its use. If it is to be kept in passable condition, the burden of upkeep must necessarily fall on the users of it.

The question arises of whether, under the circumstances shown, it does not follow that, notwithstanding the absence in the deeds of an express grant of an exclusiveness of use, the alley nevertheless was intended by the grantor and the grantee in each deed to be used exclusively for the benefit of the owners of the houses built by the grantor in developing and marketing his plot of land. In Greene v....