Lindsay v. Jones

Construction Op Deed — Easement—Estoppel.—Where the owner of an alley and adjoining lots conveys part of them, describing them as fronting on a certain street, and “with a depth of eighty-five feet to an alley fifteen feet in width,” the deed carries title to the middle of the alley, with an easement of way over the other half, the grantor having a like easement over the other half conveyed, and such grantor and his heirs are estopped from asserting any claim or doing any acts inconsistent with the grantee’s use of such easement.

Appeal from the District Court of the State of Nevada, Washoe county., R. R. Bigelow, District Judge. The facts sufficiently appear in the opinion. I. The deed, the construction of which is involved, does not, in terms, grant an easement in the alley. It grants *‘eighty-five feet to the alley,” not ninety-two and one-half feet to the center of the alley, which necessarily excludes the inference that the alley, or any part of it, was intended to be conveyed. (Railroad Co. v. Heise.l, 38 Mich. 62, 72; Smith v. Sloconib, 9 Gray, 36; Sibley v. Holden, 10 Piel;. 249; Phillips v. Bowers, 7 Gray, 21; Hughes v. 11. B. Co., 2 It. I. 508; Hoboken Land Co. v. Kerrigan, 31 N. J. 13; Anderson v. James, 4 Rob. Sr. Ct. (N. Y.) 35; Halsey v. McCormack, 13 N. Y. 296; Howard v. Dngersoll, 13 How. 381; Lough v. Machlin, 40 Ohio St. 332; Peabody Heights Go. v. Sailer, 53 Md. 533; Tyler v. Hammond, 11 Pick. 193; Secconi v. Bodden, 147 Mass. 164; People v. Board of Supervisors, 125, 111, 9, 23, 24, 25.) The alley is a mere private way, in no sense public or belonging to the public. (Lough v. Machlin, 40 Ohio St. 332.) The intentions of the parties as expressed in the deed must govern. Mere presumptions must yield to this expressed intention. (Devlin on Deeds, Sec. 1025; 13 Pick. 261.) I. This is an appeal from the judgment. There is no statement on appeal or bill of exceptions in the record. Besides the right acquired by grant, the complaint demands relief by reason of a prescriptive right of easement, which cause of action appellant entirely ignores. There being no findings before this court, it will imply them and presume that the court below found for plaintiff on the question of prescription raised by the pleadings and such findings would sustain the decree. II. The rule announced in the lower court: “If the alley existed then the plaintiff has a right to have it remain; if it did not exist, he must have intended to give the purchaser to understand that there should be one of that size. Such an alley added, doubtless, to the value of the property, and was probably one of the inducements for the grantee to purchase. The fact that the land conveyed is described as being eighty-five feet in width does not change the rule,” is sustained by innumerable authorities. (Slone v. Brooks, 35 Cal. 498-501; Kittle v. Pfeiffer, 22 Cal. 489; O’Linda v. Lolhrop, 21 Pick. 292; Cin. v. While’s Lessees, 6 Pet. 431; Irwin v. Dixon, 9 How. U. S. 31; U. S. v. Chicago, 7 How. U. S. 186; Bowan v. 'Town of Portland, 8 B. Monr. 235; City of Loganspori v. Dunn, 8 Ind. 378; Breed v. Cunningham, 2 Cal. 368; Harding v. Jasper, 14 Cal. 642.)' By a well known rule of construction measurements will yield to monuments, etc. (Ne.wha.ll v. Irison, 8 Cush. 589; Golion v. Seavey, 22 Gal. 503, and authorities cited.)