Vogler v. Geiss

• Decision Date: 17 June 1879
• Citation: 51 Md. 407
• Parties: MATHIAS VOGLER and CATHARINE, his Wife v. JOHN T. GEISS.
• Court: Maryland Court of Appeals

51 Md. 407

MATHIAS VOGLER and CATHARINE, his Wife v. JOHN T. GEISS.

Court of Appeals of Maryland

June 17, 1879

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., BOWIE, MILLER and ALVEY J.

Frederick C. Cook, for the appellants.

Thomas A. Hopkins, for the appellee.

ALVEY J., delivered the opinion of the Court.

This was an action on the case for obstructing an alley, the use of which was appurtenant to the premises of the plaintiff. At the trial below, the plaintiff gave evidence tending to prove that he and the defendants were leasehold owners of adjoining lots on Granby street, in the City of Baltimore, and that such lots run back to a seven foot alley running parallel with Granby street, and from which alley there is a cross alley running along and binding on the east side of the defendant's lot to the intersection of Granby street. That both these alleys were, and have been since the laying out of the lots, for the common use of the two lots, and that the plaintiff acquired the right to such use under the deed for the lot now occupied by him. He then gave evidence to show that at the time he purchased his lot there were certain obstructions in the cross alley running along the east side of the defendants' lot, placed there by the defendants that such obstructions consisted of a board fence, over six feet high, across the mouth of the alley at the entrance from Granby street, with a gate fitted therein, fastened with bolt and latch worked on the inside; also a pair of steps leading into the alley from a door in defendants' house, and a door and gate leading out from the defendants' house and yard, and swinging over the alley; and also an excavation affording an entrance to a cellar, and a cellar door opening in the alley. The defendants then offered to prove by competent witnesses, that the obstructions just described were erected by the defendants, under a verbal agreement between the defendants and the former owner of the leasehold interest or estate in the plaintiff's lot, to which the use of the alleys were appurtenant; that such obstructions were erected by and with the permission and consent of one Horzman, under and from whom the plaintiff derived title to his lot. To the admissibility of this evidence the plaintiff objected, and the Court sustained the objection and excluded the evidence from the jury. This ruling presents the only question made upon the record brought into this Court.

It is now very well settled, by authorities of the highest character, that a party entitled to a right of way or other mere easement in the land of another may abandon and extinguish such right by acts In pais, and without deed or other writing. The act or acts relied on, however, to effect such result, must be of a decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question, whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time. Glenn vs. Davis, 35 Md., 208, 217; Reg vs. Chorley, 12 Ad. & El. ( N. S.,) 515; Moore vs. Rawson, 3 B. & Cr., 332; Liggins vs. Inge, 7 Bing., 682; Pope vs. Devereux, 5 Gray, 409. If the party entitled to a right of way over the land of another agrees or consents that the owner, or other person interested in such servient tenement, shall erect a house or...