Schaidt v. Blaul

• Decision Date: 18 November 1886
• Citation: 6 A. 669,66 Md. 141
• Parties: SCHAIDT v. BLAUL.
• Court: Maryland Court of Appeals

6 A. 669

66 Md. 141

SCHAIDT v. BLAUL.

Court of Appeals of Maryland

November 18, 1886

Appeal from the circuit court for Allegany county. Decree for plaintiff. Defendant appeals.

In equity. Injunction to restrain obstruction of right of way.

R T. Semmes, for appellant.

James A. McHenry and D. J. Blackiston, for appellee.

BRYAN J.

The circuit court for Allegany county, sitting in equity, passed a decree by which the appellant was required to remove certain obstructions from an alley, and was perpetually enjoined from erecting others. The bill of complaint was filed by Frank A. Blaul, and it charged that he was the owner in fee of a lot of ground on the west side of North Mechanic street, in the town of Cumberland, and that Caspar Schaidt was in possession of another lot on said street, and claimed title thereto under conveyances from William Wright's heirs, under whom the complainant also claimed title. It was also charged that between these two lots there was an alley 12 feet wide, which led from Mechanic street to Wills creek and that at the time the complainant became seized and possessed of his lot, and for more than 20 years previously thereto, this alley had been unobstructed. It was further charged that, by virtue of four several conveyances, (of which copies are filed,) a right of way in, through, and over said alley was vested in the complainant in perpetuity. All these allegations are distinctly admitted in the answer. It will be seen that the admissions comprehend, not only matters of fact, but also the construction which the complainant puts on the deeds, which are exhibited with the bill of complaint.

Before we state our opinion, it will relieve the case of some embarrassment if we consider the effect and operation of these deeds. On the eighth of January, 1886, Josiah Englar executor of William Wright, deceased, conveyed to Christian Pfizenmaier, in fee, the lot now owned by Schaidt. The deed of conveyance, which is executed both by Englar as executor and by Pfizenmaier, contains the following passage:

"And the said Christian Pfizenmaier, in pursuance of a verbal agreement to that effect made at the time of said sale, doth hereby grant unto the owners or owner, and their heirs and assigns, of the brick house, and curtilage adjoining the property hereby conveyed on the west side thereof, now in the occupancy of Josiah Englar, a right of way in perpetuity through the alley as it now stands, which divides the property above conveyed from said brick house."

On the twenty-third of January, 1879, this lot was conveyed by Pfizenmaier and his wife to Schaidt in fee. This deed contains the following passage:

"And the said Pfizenmaier, in pursuance of a verbal agreement to the effect, made at the time of the sale of said lot to him, doth hereby grant unto the owner or owners, and their heirs and assigns, of the brick house, and curtilage adjoining the property hereby conveyed on the west side thereof, now in the occupancy of Matthias Y. Rabold, a right of way in perpetuity through the alley as it now stands, which divides the property above-granted from said brick house."

The grant of the right of way is stated to be made to persons who are designated as the owner or owners of a certain brick house and curtilage. By the common law it was not necessary that the name of the grantee should be inserted in a deed, provided he was described with sufficient certainty to distinguish him from all other persons. If a grant were made to the earl of Essex, or to the duke of Norfolk, without other description, it was good; because there could not be two persons at the same time holding either of these titles, and therefore the identification of the grantee would be complete. And probably to describe a grantee as heir of John Thompson [a deceased person] would be sufficient, inasmuch as the character of heir would show the person intended with sufficient certainty. But the ownership of a house is a casual circumstance, which is liable to change from time to time, and does not impress upon an individual any permanent characteristic by which he may be identified. We cannot, therefore, hold that such a description is sufficient to enable any one to claim as grantee in a deed; and we might probably go further, and say that the proper construction of the ninth section of article 24 of the Code requires that the name of the grantee should always be set forth in the deed. Certainly such a construction would be in harmony with the spirit of the registration acts, which are founded on the policy of requiring that every circumstance should appear on the face of the registry which is necessary to the devolution of the title to real estate. But, although there was no grant of the right of way to any one by these deeds, some effect must be given to the words in question. Although they do not convey the right of way to the owners of the brick house, it is very certain that they restrict and diminish the interest conveyed to the grantee in these two deeds. The right of way is excepted out of the interest conveyed, and a declaration is made, in substance, that it is for the benefit of the owners of the brick house. On the second day of May, 1868, Kennedy H. Butler and wife conveyed to John and Matthias Rabold in fee a portion of the lot now occupied and owned by the complainant. In this deed we find these words:

"Reserving, nevertheless, in, through, and over the alley, now open, and binding on the easterly side of that part of said lot hereby granted, a right of way in perpetuity, in common with the owner and occupiers of that part of same lot binding on the easterly side of said alley directly opposite to the part of same lot hereby granted to the said John Rabold and Matthias Y. Rabold, their heirs and assigns; said alley leading from Mechanic street to Wills creek aforesaid."

These words evidently show that it was the opinion of the grantors that they could grant a right of way over the alley in question. If they had any such right, the words used were not appropriate to the purpose of conveying it. The alley was not within the limits of the property which they conveyed, and they undertook to reserve a right of way over it in common with the owners of the adjoining lot. The language used is most inapt and untechnical. In Shep. Touch. 80, it is said:

"A reservation is a clause of a deed whereby the feoffor, donor, lessor, grantor, etc., doth reserve some new thing to himself out of that which he granted before. * * * This doth differ from an exception, which is ever of part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created or reserved out of a thing demised, that was not in esse before; so that this doth always reserve that which was not before, or abridge the tenure of that which was not before. *

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