Watts v. C. I. Johnson & Bowman Real Estate Corp.

• Decision Date: 14 June 1906
• Citation: 105 Va. 519,54 S.E. 317
• Court: Virginia Supreme Court
• Parties: WATTS et al. v. C. I. JOHNSON & BOWMAN REAL ESTATE CORP.

54 S.E. 317

105 Va. 519

WATTS et al.

v.C. I. JOHNSON & BOWMAN REAL ESTATE CORP.

Supreme Court of Appeals of Virginia.

June 14, 1906.

Easements—Abandonment.

Under a deed to the owner of a lot adjoining one owned by the grantor, conveying a part of the grantor's lot between a building thereon and the lot of the grantee, with privilege to build on the tract conveyed or on the grantee's lot, and to join the building to the lower side wall of the building on the grantor's lot, and to pierce the walls of the latter and insert timbers therein so as to have a convenient alley to be used in common by the grantor and grantee, where parties claiming under the grantor built a brick wall at the opening into the alley, but had windows facing the alley and a sewer beneath it, they did not lose their rights to the alley by abandonment.

Appeal from Corporation Court of Lynchburg.

Action by C. I. Johnson & Bowman Real Estate Corporation against R. T. Watts and others. From a decree in favor of complainant, defendants appeal. Reversed.

Harrison & Long, for appellant.

Wilson & Manson, for appellee.

WHITTLE, J. Appellee's bill charges that appellants have abandoned their right to a joint alley separating two adjacent lots belonging to the parties, respectively, and fronting on Main street in the city of Lynchburg; and its prayer is that the court will remove the cloud upon the title of appellee to the entire alley by decreeing the alleged abandonment by appellants a perpetual bar to their claim to any interest therein.

Appellants demurred to the bill, and also filed their answer, denying its allegation and insisting upon their right to the continued enjoyment of the alley in common with appellee.

At the hearing the trial court passed a decree sustaining the contention of appellee, and adjudging the interest of appellants in the alley forfeited, from which decree this appeal was allowed.

The question for decision is one of law merely, upon practically undisputed facts.

The parties derived title to the alley in controversy from a common source, George E. Roberts, who, in the year 1841, conveyed to "Jno. M. Warwick and to his heirs and assigns, forever, all that piece or parcel of ground, situated on Second (now Main) street in the town of Lynchburg, between the lower corner of the brick tenement on said street, the property of the said George E. Roberts * * * and the upper line of the lot lying immediately below on the same street, belonging to the said John M. Warwick; the said piece or parcel of ground containing by estimation 5 feet, more or less, in front on the said street, and running back 132 feet, together with the privileges to the said John M. Warwick and his heirs and assigns, whenever disposed to build on the said piece or parcel of ground, or on the lot of ground belonging to the said Warwick, adjoining the same, to build up to and join such new building to, the lower side wall of the brick tenement aforesaid, belonging to the said Roberts, and to pierce the said walls and insert timbers therein, so as to have a convenient alley, 4 1/2 feet wide, next to said wall of the brick tenement aforesaid, and running back 132 feet, which alley is to be used in common by the said Roberts and Warwick, and their respective heirs and assigns, forever, and the use of the same is hereby expressly reserved to the said George E. Roberts, and to his heirs and assigns, forever."

There was a doorway in the wall of the brick tenement referred to in the foregoing deed, opening on the alley. The old building was destroyed by fire in the year 1883, and shortly after the fire appellants erected the present structure, which covers their entire lot, and used part of the old wall in the construction of the new building, filling in the doorway in the old wall with brick; so that at present there is no doorway in the wall to the new building opening on the alley, but there are windows in the side of the building overlooking the alley, and upon which it is in part dependent for light and air.

The house upon the lot of appellee, which was erected in the year 1844, is 50 or 60 feet long and two stories high; and the alley is built over from the top of the first story; the timbers in the building being imbedded in the old wall of the Roberts house. There is also a sewer under the alley, which has been continuously used in common by the parties and their predecessors in title for many years, the right of appellants to the use of which is established by the decree under review. It also appears that a short while before the institution of this suit appellants repaired the alley by cementing the cracks between the flagging, so as to prevent surface water from escaping into their cellar.

The avowed purpose of the litigation is to enable appellee to acquire absolute ownership of the alley, relieved of the easement reserved in the deed from...