Summary
This was an action on the case brought in this Court by William Kirkham against John Sharp, junior.
By agreement the following case was stated for the opinion and judgment of the Court.
“ By indenture, bearing date the 20th day of April, 1767, Anthony Morris and wife granted and conveyed to John Litle and his heirs, a large lot of ground on the east side of Fourth street, between Market and Chesnüt street, in the city of Philadelphia, with the easements and appurtenances therein mentioned. In this deed the lot was thus described ;
“ Beginning at Fourth street, at south corner of C. Brockden’s lot, (1), E. along Brockden’s lot 104 feet, to the extent thereof, (2,) N. along back end thereof 34 feet 4 inches, (3,) E. along end of lot formerly of said A. Morris, now Adam Eckart, to a 3 feet alley leading into Market street, (4,) S. along said alley 26£ feet., to the end thereof, (5,) E. 3 feet to lot of Francis Allison, now Charles Thomson, (6,) along said lot S. 179 feet 4 inches, to lot of John Martin, (7,) W. along Martin’s lot 125 feet 8i inches, to Fourth street, (8,) N. along Fourth street 171 feet 6 inches, to beginning. Together with the use of the said 8 feet alley, leading into Market street.”
By indenture, bearing date the 4th day of February, 1792, the said Litle and wife granted and conveyed to Robert Smock and his heirs, a part of the said large lot, with the easements and appurtenances therein mentioned.
Viz. — “ A lot on the east side of Fourth street, between High and Chesnut streets, containing in front on Fourth street 25 feet, and in depth about 100 feet more or less. Bounded east by a brick stable standing in line of the lot, south by Litle’s other ground, west by Fourth street, and north by ground’ now or late of Litle.
“ Together also with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon, a four feet and six inches alley, extending in and about forty-five feet from Fourth' street, to be forever left open between the lot hereby granted and the house now occupied by Miss Clinton ; also, with the full and free privilege of the use of the pump of water being in the yard of the aforesaid house, and about on the line between the two lots.” Reserving a ground rent, with a covenant of grantee to pay the rent, and within five years to build on the lot a good three story brick house.
The premises thereby granted and conveyed to Smock, and the easements and appurtenances then or since belonging to them, are now the property of the plaintiif, who holds them under Smock by a chain of conveyances. In the year, 1793, Smock erected upon the last mentioned premises, the three story brick dwelling, No 7, South Fourth street, with two story brick back-buildings, running eastward. These back buildings extend to and adjoin the wall of the stable mentioned in the deed to Smock. From the time of the erection of the house No. 7, until now, it has always been inhabited.
The said John Litle remained the owner and in possession of all the remainder of the premises granted and conveyed to him by Anthony Morris and wife, until the (ime of his death.
On the 21st day of December, 1827, by indenture bearing date that day, James Ross, administrator with the will annexed of the said John Litle, did grant and convey to John Sharp, the defendant, and John W. Downing, all the premises granted and conveyed by the said Anthony Morris and wife to the said John Litle, except that part conveyed to Smock in 1792, in the manner therein expressed. This conveyance was accepted by the defendant and Downing.
This deed reciting that Litle had died seised of the Indian Queen Hotel and messuages, and the lot thereto belonging, having first made his will, &c. directing his executors after his widow’s death, to sell his real estate — that she and all the executors are dead, and the grantor administrator cum testamento annexo, pursuant to act of 12th March, 1800, conveys the premises according to the description in the deed of 1767, from Morris to Litle, to the end of the fifth course and distance, then proceeds with the description as follows “ (6) along said lot south 179 feet 4 inches to a lot formerly of John Martin, now of said John Sharp, Junior, (7) west along same 50 feet 8£ inches, to a strip 3 feet wide, conveyed by Litle on 4th February, 1768, to John Martin, (8) north, by east end of that strip 3 feet, (9) west, along north line of that strip 75 feet to Fourth street, (10) north by Fourth street, 116 feet 6 inches to “ South line of a lot 25 feet wide, which the said John Litle, by deed dated the 4th day of February, A. D. 1792, sold and conveyed to one Robert Smock, now belonging to William Kirkham, thence eastwardly by the south line of Kirkham’s said lot about 100 feet, more or less, to a brick stable included in this grant.” (12) north by rear end of Kirkham’s lot, 25 feet, (13) west, by north line of Kirkham’s lot, about 100 feet, to Fourth street, (14) north, along east line of Fourth street, and bounding thereon about 25 feet 6 inches more or less, to beginning, Subject to the full and free privilege and authority of ingress, egress and regress, granted by the said John Litle, by the deed aforesaid, to the said Robert Smock, his heirs and assigns, by, through and upon a 4 feet 6 inches alley, along side of the north line of Kirkham’s said lot, and extending in and about 45 feet from Fourth street, to be forever left open between Kirk-ham’s said lot and the house included in this grant, formerly occupied by Miss Clinton, and now occupied by Mrs. Weeks, and also subject to the full and free privilege in the owners of Kiri; ham’s said lot, of the use of the pump of water being in the yard of the last mentioned house, and about on a line between the two lots, and also granted by the said John Litle to the said Robert Smoch, his heirs and assigns, by the deed aforesaid.” This deed also recited, that the premises thereby granted and the strip sold by Litle to Martin, and the 25 feet lot sold by Litle to Smock, were the entire lot which Morris and wife conveyed to Litle, and conveyed the same, “ together with the full and free privilege and authority of ingress, egress and regress by, through and upon the aforesaid 3 feet wide alley, leading into High or Market street aforesaid.” Habendum to grantees in common, in fee, in equal parts, subject to a paramount ground rent, and “ to all the covenants made by the said John Litle to the said Robert Smock,” in the deed of 4th February, 1792.
The premises granted and conveyed by James Ross to the defendant and John W. Downing, were, at the time of the conveyance from John Litle and wife, to Robert Smock, in the year 1792, used and occupied as follows, to wit:
On that part of the said premises which lie north of the lot of the plaintiff there was then erected a three story brick house on the front of the lot adjoining Fourth street, being the house No 5, south Fourth street, and in the rear of this house there were then erected back buildings which extended eastward to the said stable wall. The back buildings faced the back buildings of the plaintiff. This house, No. 5, is the same which is mentioned in the deed to Smock as being then occupied by Miss Clinton. It has been occupied ever since as a dwelling house.
That part of the premises which lies east of the lot occupied formerly by Miss Clinton, and east and south of the plaintiff’s lot, was occupied as the Indian Queen tavern and its stables and appurtenances. The Indian Queen tavern stands, and did in 1792 stand on the south-western extremity of the lot granted and conveyed by Morris and wife to Litle; there was a dwelling house adjoining the tavern on the north; an archway, sufficiently large to admit carriages, was taken from the southern side of this last house and adjoining the said tavern, which archway led into the yard and to the stables of the said tavern and back of said stables to a vacant part of said larger lot used as a stable yard, of which this archway formed an outlet. The space of-feet on Fourth street adjoining the plaintiff’s house and lot on the south was vacant and not built on till the year -. The other ground fronting on Fourth street was all built on at the date of the conveyance from Litle and wife to Smock. From the vacant part of the said larger lot back of the said stables there was an alley leading northwardly into Market street, which is still open, and is the same alley mentioned in the conveyance from Morris to Litle. The western wall of the stable beginning at about a foot northward of the north-east corner of the lot formerly occupied by Miss Clinton and running parallel to and about one hundred feet distant from Fourth street, extends southerly more than one hundred feet. From before the conveyance to Smock in 1792, until the autumn of 1828, there never was any door, window, light, or other opening of any sort in that part of the said wall which bounds the said premises No. 5, and No. 7. The wall prevented all access from that quarter to the premises of. the plaintiff, or the premises occupied as aforesaid, by Miss Clinton. During this period, the only means of approach to either of these premises, was from the side of Fourth street.
From the conveyance to .Smock in 1792, until the autumn of 1828, the alley leading into Fourth street, four and a half feet wide, by forty-five feet deep, mentioned in that conveyance, was always used uninterruptedly by the owners and occupiers of the said houses, No. 7, and No. 5, South Fourth street, for the purposes of those two houses respectively, and of the families inhabiting the same, as a footway, and for no other purpose, ahd during the whole of that period,.was never used by any other person for any purpose. At the eastern end of the main building of each house, was a private gate leading into the alley. The alley extended no further back eastward than these gates, where it was stopt up by the fence of the said lot-formerly occupied by Miss Clinton, which’ fence ran across the head of the alley four and a half feet, to the fence of the lot of No. 7, at the distance of about forty-five feet from Fourth street, and thence, the two fences being there united, and forming one division fence from the junction, ran eastwardly about fifty-five feet to the western wall of the said stable.
On and since the 1st day of October, 1828, the defendant has passed on foot, in, upon, over and across the said alley four and a half feet wide by forty-five feet, backward and forward to and from that part of the premises granted by Morris and wife to Li tie, which lies easterly from the said stable wall, without the leave of the plaintiff, and has also passed with a horse, leading the said horse in, upon, over and across the same alley backward and forward, to and from that part of the said premises which lie east of the said stable wall, without leave of the plaintiff.
To enable himself thus to pass to and from said part of the premises which lie east of said stable wall, he lengthened the said alley four and a half feet wide by forty-five feet, by removing that part of the fence of the lot formerly occupied by Miss Clinton, which had previously stopped the alley on the eastward, and extending the fence from the gate of the lot formerly occupied by Miss Clinton, on the ground which was granted to defendant and John W, Downing, by James Ross aforesaid, parallel to, and four and a half feet equidistant from the former division fence, to said stable, then breaking a passage through the stable wall, and making the same with the alley extended as aforesaid, form one continuous passage and thoroughfare between Fourth street and that part of the premises granted by Morris to Litle, which lies east of the stable wall aforesaid, thus enabling himself, the said defendant, his heirs and assigns, owners and occupants of the said larger lot, and of that part of the said premises which lies east of the said stable wall, to use the said alley as aforesaid, without the plaintiff’s leave obtained in that behalf.
It is agreed that the several deeds and writings aforesaid, be in evidence, and that from the same and from the facts before stated, the Court may infer such matters and things, as, in their judgment, a jury ought to infer from the said deeds, writings and facts.
The question submitted to the Court is, whether in point of law the defendant has, by reason of the premises, interfered with or obstructed the said alley, or the use or enjoyment thereof, by the plaintiff, as the plaintiff was entitled to use and enjoy the same. If the Court should be of opinion that the defendant had to right to use the said alley leading into Fourth street, to pass either on foot, or with a horse or horses, over the same, to and from that part of the premises granted and conveyed by Morris and wife to Litle, which lies east of the said stable wall, then judgment is to be entered for the plaintiff generally. If the Court shall be of opinion that the defendant had a right thus to pass on foot, but not to lead a horse over the same, then a special judgment is to be entered for the plaintiff accordingly. If the Court shall be of opinion that the defendant had a right thus to pass either on foot or with horses, at his pleasure, then judgment is to be entered for the defendant.
'If judgment should be entered in favour of the plaintiff, he is to be at liberty to bring a new action for any damages he may have sustained in consequence of any interference with, or obstruction of the use of the said alley by the defendant, since the 19th of March, 1830 ; it being agreed and understood, that the present action and case stated, are to have the same effect as if the same had been commenced by an agreement like the present, filed on that day.”
The following Diagram exhibits the situation of the alley and the adjoining ground:—
Arguments for the plaintiff: — •
A right of way or other incorporeal right exercisable in lands, is a species of property wholly independent of the soil or land in which it is exercisable, and of the ownership of such soil. It may be enjoyed to the entire exclusion, and therefore, a fortiori, to the partial exclusion of the owner of the soil. This is true, whether the exclusion arises from grant or from prescription. Its capacity to arise from prescription, is a proof that there would be nothing unreasonable in construing a grant as implicative of an intention to exclude the owner of the soil from the benefit of the right granted. Co. Litt. 1.22, («), and Hargr. note 6 & 7 of this 'folio. 2 Ro. A hr. 267, Prescription L. Hawks v. Molyneux, (1 Leon. 73.) Potter v. North, (l Levinz, 268.) Hopkins v. Robins, (Po/leaff. 13.) Grisell v. Leigh, (Sir W. Jones, 12.) The owner of the way, and the owner of the soil having each an absolute property, the one in the way, the other in the soil subject to the way; each is entitled to use' what is thus his own. But the right of each is subject to the restriction implied in the maxim, sicutere tuout alienum non laidas. Hence it results that the owner of the soil cannot make use of the soil in any manner which causes an obstruction of the way. Then the question is, what amounts to an obstruction of the right of way ? The law furnishes the answer. Any thing by means of which the use of the land for the purposes of the way, is or may be rendered less beneficial. An actual corporeal impediment is by no means, an essential part of the definition of an obstruction of a private way. Any unauthorized walking over it, is a constructive obstruction of it, for which an action lies.' The chief benefit of a private way, consists in its privacy. The fewer other persons who use it, the more ample and beneficial is its enjoyment, actual or potential, to the man who has the right of way. And with respect to those who have the right to use it in common with him, the fewer the places to and from which it serves as a passage, and the.^ nearer such places lie to the way itself, or to one another, the more ample and beneficial is its enjoyment, because it is by so much the more private, and less liable to interruption.
If a man who has a right of way over land, for the purpose of passing from A. to B., uses the land for the purpose of passing from A. to C. it will be' no excuse for his doing so, that in going from A. to C. he passed through B. and therefore really went from A. to B. That an action of trespass against him who has the way, will lie in such a case, at the suit of the owner of the soil, appears from 1 Ro. Abr. 391, pi. 1,2, 3. Howell v. King, (1 Mod. 190.) Webster v. Bach, (3 Keble, 848. Freem. 247, S. C.) And that under similar circumstances, an action on the case will lie against him, at the suit of one who has himself nothing but a mere right of way, appears from Laughton v. Ward, (l Ld. Ray. 75.) 1 Luiw. Ill, S. C. JVels. Lutw. 41, S. C. 3 Ld. Ray. 85, pleadings, S. C. The last case proves that such a use of the land, which is the subject of the way, is an obstruction of the right of way, for which an action will lie at the suit of one who has nothing more than a right of way.
It may be conceded that the same strictness does not apply as against the owner of the soil, unless he has expressly or impliedly limited or restrained the extent of his own right of passage over the land, which forms the subject of another’s right of way. But, if he has expressly or impliedly limited it, he can have no right of passage beyond the bounds of the restriction, which he has imposed upon himself. Such a restriction is in this case imposed, by the terms of the grant of way, in the deed of February 4th, 1792, from Litle to Smock. This deed defines the limits of the alley, and restrains both parties from using it for any other purposes than those which might be connected with the use and occupation of the two houses immediately adjoining it. (Here the counsel went into an elaborate argument upon the construction of the deed, as governed by the terms of the particular clause, in which the alley is mentioned, and other clauses contained in it, as applied to the particular property in question.) It is true, that at the date of this deed the grantor owned the adjacent property, to which thp defendant would now use the alley as a passage. But the description in the deed of 1792 shows that for all purposes, connected with the lot conveyed to Smock, this adjacent property was as completely severed from the two houses bounding on the alley, as if it had then belonged to a stranger. Both of them were separated from, ánd deprived of all access to it by the wall of the stable called for in the deed as a boundary; and the restriction of the depth of the alley to 45 feet from Fourth-street, less than half the distance of this stable wall from the street, negatives the possibility of an intention in either party, that the alley should ever serve as a passage to and from property beyond that wall. It is as a passage to and from the property beyond the wall, however, that the defendant has used the alley. This is a use of it contrary to the plain meaning of the deed of 1792. This is a strong case for the application of the maxim: Verha fortius accipiuntur contra proferentem. The grantee, Mr. Smock, took the lot under a covenant in the deed, which conapelled him to erect a brick-house on it. He went to the expense of building this house, adapting his plans of course to the precise description of the alley contained in the deed. The true construction of the deed is, to interpret it as though the house covenanted for, had been already built, in the same manner, in which it was afterwards built in pursuance of the covenant. The grant of the way is evidently designed to place the grantee of it, quoad his house, on a footing at least equal with the footing on which the grantor was himself to remain, quoad the privilege granted as to the adjoining house. This is the import of the words full and/ree, annexed to the description of the privilege granted; as to which see Smith v. Kempe, (2 Salk. 637.) The counsel in the course of their argument under this head commented particularly upon Evans v. Desilver, (8 Serg. Sf Rawle, 92, 96,) and Watson v. Bioron, (1 Serg. Rawle, 227, 230.) The length of nonuser, and nonclaim of user by the defendant, and those under whom he holds, of the right which he now asserts, was a point also made by the plaintiff’s counsel who, under this head of the argument, endeavoured to distinguish the case from Butz v. Jhrie, (1 Rawle, 218;) this being not a case of mere nonuser on the one side, but of nonuser during a period of continued, active, exclusive user on the other side. Wynkoop v. Burger, (12 Johns. 222.) Com-stock v. Vanderson, (5 Pick. 163, 167.)
At all events the plaintiff is entitled to judgment on the ground, that the defendant passed over the alley with a horse. Nothing can excuse the conversion of a footway into a horseway even by the owner of the soil. It is a public nuisance for a man to ride on the footway of a public highroad. The rules of pleading require that the character of the way, whether footway or horseway or both, be mentioned on the record. Alban v. Brounsall, (Yelv. 163-4.) Broionl. 215-6, <S. C. 3 Ld. Raym. 85. The necessity of such an averment is a decisive proof that the two species of way are wholly distinct and not to be confounded.
Arguments for the defendant:
If the,plaintiff’s point could not have been sustained in 1792 immediately after the deed to Smock, it cannot have derived strength from any thing which has since occurred. Neither the mode in which his house was afterwards erected, nor the length of time during which the alley was afterwards suffered to remain in its original situation, nor the greater or less degree of convenience or inconvenience from subsequent circumstances, can avail him in any wise. [This the Court distinctly granted to the counsel.]
Then the case must turn upon the clause respecting the alley contained in the deed of 1792. This contains no express restriction of any sort against the grantor. It merely gives a right of passage to the grantee. Now, whatever whs not transferred away by the grantor, remained in him as of his former estate. Before the deed to Smock, the strip which forms the alley was the grantor’s own, to use as he pleased, on foot or with horses, to pass and repass to and from what place or places he pleased. The same right remained in him afterwards, to use as he might please, so that he did not make any actual obstruction, in a corporeal sense, of the way. If he left the space of the alley open at all times, when the use of it for the plaintiff’s house might be necessary or convenient, it does not belong to the plaintiff to complain what use he made in other respects of land which was his own. The contrary doctrine would be inconvenient, and in this city would be restrictive of the improvement, and prejudicial to the enjoyment of property. It is a highly artificial doctrine which recognizes the possibility of a mere constructive obstruction of an easement or passage by means which oppose no corporeal impediment to the use of it. The cases in 1 Ro. Ab. 1 Mod. 3, Keble fy Freeman, were all cases in which the complaint was sustained at the suit of the. owner of the soil in an action of trespass. Laughton v. Ward, (1 Ld. Raym. 75 <f Luiio. Ill,) it is true, was an action by a man who had only a right of way; but it was brought not against the owner of the soil, but against another person who had himself only a mere right of way. The case, therefore, is not in point against the owner of the soil. In favour of the owner of the soil the cases apply, in which it has been held as to public roads, that the owner of the land over which they pass, retains all his former rights, subject only to the easement enjoyed by the public. Nothing short of an actual impediment is considered as the obstruction of a highway. In the present case we contend, that it was competent to the defendant to convert the alley in question into a thoroughfare from a manufactory situated elsewhere, or in short, if he pleased to convert it into a public highway, provided he left the plaintiff reasonable means of egress and regress over the alley, at suitable times, to such extent as the purposes of a dwelling-house might require. A multo fortiori, he was entitled to use it for the purpose of passing and repassing to and from land of his own, part of the same property which originally included the plaintiff’s own lot and belonged to the grantor, under whom the plaintiff claims, at the time when his own lot was granted to the person under whom he holds it.
The defendant’s counsel cited the following authorities: Stackpole v. Ely, (16 Mass. 33.) Purdy v. Chandler, (6 Mass. 454.) Robins v. Bond, (1 Pick. 122.) Cortelyou v. Van Brunt, (2 Johns. 357.) Stark. Ev. Pt. 4. 1679, 1680. Goodtitle v. Alker, (1 Burr. 133. 143. 146.) Russell v. Jackson, (2 Pick. 574.) Matthew’s Pres. Ev. 325.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
