Chapin v. Brown

Dukofee, C. J. This bill is brought against the defendant by Daniel A. Chapin as owner, and by John t H. Jackson as lessee, of a lot of land in Tiverton, to have the defendant enjoined from maintaining fences across certain avenues, so called, over which they claim, a right of way as appurtenant to said lot. The lot is parcel of a larger tract, formerly belonging to William C. Davol, Jun., Alexander D. Easton, and James T. Milne, who in August, 1871, caused the same, together with an adjoining tract belonging to them and one Joseph Osborne, who cooperated with them, to be platted, in the language of the bill, “ into lots and avenues on one plat, described as c a plan of house-lots surveyed by Benjamin C. Borden for Davol, Easton, and Milne, and Joseph Osborne,’ and on or about the first day of January caused said plat to be recorded ” in the town clerk’s office of said town of Tiverton. The bill alleges that thereafter wards Davol, Easton, and Milne sold parts of the first-mentioned tract, and described them, in the deeds whereby they conveyed them, as *582 lots on said plat, and that Davol, Easton, Milne, and Osborne sold parts of the last-mentioned tract, and described them in the deeds whereby they conveyed them as lots on said plat, reference thereto being specifically made, the complainant Chapin being a purchaser by mesne conveyances of one of the lots so sold, and the complainant Jackson lessee thereof under him. The lots are delineated on the plat as intersected by four avenues, three running i east and west from a highway on the east to a highway on the west, and< called North Avenue, Middle Avenue, and South Avenue, and one running north and south from said North Avenue to said South Avenue, about midway between said highways, and having no name. The bill avers that the purchasers of lots as aforesaid became entitled, under their deeds referring to said plat, to a right of way over all said avenues as appurtenant to their • lots, and prays that the defendant may be enjoined to remove the fences from said avenues and keep them removed. The defendant sets up in his answer that he is the owner by various conveyances of the land lying next west of lot 31; 1 that, when he purchased the same, there was a wall across the east end of North Avenue, so called, with a gate therein, 'by which the land was protected from intrusion from the highway, and that this protection was an inducement to his purchase; that Chapin subsequently removed said wall and gate, and that thereupon he, the defendant, erected a fence with gate across North Avenue, so called, in the line of the boundary between his land and lot 31, for the protection of his land ; that said North Avenue was never laid out or fenced out as a street or way, or laid open, or contemplated to be laid open, for the benefit of lot 31, and was never in contemplation of any seller or buyer of any lot in the plat as being in any way appurtenant to lot 31. The plat adduced in evidence shows that the two tracts of land as platted contained sixty-six numbered lots. Quite a- number of them came to the defendant by deeds referring to the plat, designating the lots by their number thereon, and mentioning the avenues by way of boundary or description, and constitute the land belonging to him lying west of lot 31. The complainant Chapin *583 bolds lot 31 under deeds referring to the plat, designating the lot: by its number, and mentioning North Avenue by way of boundary or description. The complainants maintain that by reason of these sales and conveyances so made the complainant Chapin acquired lot 31 with a right of way appurtenant thereto over all the avenues delineated on the plat, and the defendant took the lots conveyed to him, and whatever interest, if any, he acquired in the said avenues, subject to said right and all the consequences thereof. The question is, whether the complainants’ position is tenable. In Breed v. Cunningham, 2 Cal. 361, decided in 1852, the law is thus laid down : “ Where lots are sold as fronting on or bounded by a certain space, designated in the conveyance as a street, the use of such space as a street passes as appurtenant to the grant, and vests in the grantee, in common with the public, a right of way over said street.” And see Smiles v. Hastings, 24 Barb. S. C. 44; 22 N. Y. 217; Cox v. James, 45 N. Y. 557. In The City of Dubuque v. Maloney, 9 Iowa, 450, decided in 1859, the court held the following language, to wit: “ If the owner of land lays out a town and exhibits a plan thereof, on which are represented various plats of space or vacant ground, such as streets, alleys, squares, quays, etc., and the lots are sold with reference to the plan, the purchasers of the lots acquire, as appurtenant to the same, every easement, privilege, and advantage which the plan represents as belonging to them. The sale and conveyance imply a grant or covenant to the purchasers that the streets and other public places indicated as such upon the plan shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use.” Citing Rowan's Executors v. Town of Portland, 8 B. Mon. 232; Livingston v. The Mayor of New York, 8 Wend. 85, 106; Wyman v. The Mayor of New York, 11 Wend. 486. In Bartlett v. Bangor, 67 Me. 460, decided in 1878, the court says: “ When the owner of land within or near to a growing village or city divides it into streets and building lots, and makes a plan of the land thus divided, and then sells one or more of the lots, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can afterward *584 interrupt or destroy; and we think reason and the weight of authority are in favor of holding that such a platting and selling of lots constitute an incipient dedication of the streets to the public, which the owner of the land cannot afterward revoke. The dedication is not complete till the streets are accepted by competent authority, or the public has used them for at least twenty years. But, so far as the owner of the land is concerned, such acts constitute a proposition to dedicate, which he cannot afterward withdraw.” And see Dillon on Municip. Corp. §§ 503-505; Angelí on Highways, § 149; The City of Indianapolis v. Kingsbury, 101 Ind. 200. In Taylor v. Helper, 2 Hun, 646, decided in 1874, the rule is stated thus: “ When the proprietor of land surveys, maps, and lays out such land into lots, numbering them, with streets designated, named, and put down on the map, as between him and a grantee of a lot bounded on one of the designated streets, bis conveyance is per se a' dedication of the street to the use of his grantee as a street; as between the grantor and grantee, it is a street, which the latter has a right to use as such as soon as the conveyance is made to him. By force of the grant, an easement is attached to the land granted, which thereby becomes an appurtenant, viz., a right of way on and over the street, designated as a street for the use of the lot conveyed.” And see De Witt v. Village of Ithaca, 15 Hun, 568; Potter v. Iselin, 31 Hun, 134; Cox v. James, 45 N. Y. 557; In re Eleventh Street, 81 N. Y. 436. The ratio dlecidendi of these cases is this : that, when the grantee of a lot so platted purchases it, the existence of the streets as platted, inasmuch as they add value to the lot by the conveniences or advantages which they promise, is an inducement to the purchase, and so enters into the consideration as between the grantor and grantee, and operates by way of implied covenant, implied grant, estoppel, or dedication, whichever way of operation may be the truer, to secure to the grantee a right of way over such platted streets, and reciprocally to subject any interest which the grantee may acquire therein to a right of way for the benefit of the other platted lots. And see Steam Engine Co. v. Steam Ship Co. 12 R. I. 448; Grogan v. Town of Hayward, 6 Sawyer, 498. In *585 some of tbe cases above cited tbe doctrine is not laid down as applicable to otber than plats of urban or village lots; but we can see no reason wby it should not equally apply, at least as betwefen the lot-owners, to a plat of lots numbering sixty-six, delineated with intersecting streets. Indeed, that number of lots, if occupied with bouses, would be a village. The defendant directs our attention to the description of lot 31, as conveyed in the deed to Chapin, and contends that tbe conveyance does not extend to the centre of North Avenue, on which lot 81 abuts, but covers only the land indicated as lying within the lines of lot 31 as platted. We do not think it makes any difference to the question at issue here whether Chapin is owner of any portion of the fee of North Avenue or not; for, whether the fee of the avenue in front of his lot to the centre be in him or in the original owners of the land as platted, or in any intermediate grantee, whoever has it, according to the doctrine above laid down, holds it by force of the conveyances referring to the plat, subject to a right of way for the benefit of the lot-owners. The defendant contends that, inasmuch as the east end of North Avenue was closed by a wall and gate when he purchased, he is entitled either to have the wall and gate replaced, or to maintain his fence and gate across the avenue for the protection of his land. He adduces no authority? for his position. Certainly, if every lot along North Avenue had been bought by a different person, it could not be maintained that every purchaser, if he chose, would bave the right to obstruct the avenue by a fence and gate for the protection of his lot. The language of the cases generally imports that the right which a purchaser of a lot on a plat of lots acquires to pass and repass over -the platted streets or ways, is as full and unrestricted as if such streets or ways were public highways. North Avenue is represented on the plat as opened at the east end, and the plat does not indicate any obstruction anywhere in it which would lead a purchaser to suppose that it was intended to be incumbered by gates and fences, from the highway on the east to the highway on the west. Our conclusion is that the complainants are entitled to have the fence and gate removed from North Avenue, on which lot 31 abuts, and kept removed, and we will decree accordingly. *586 The complainants also ask for a decree for the removal of fences across other avenues. It does not appear that either of the complainants has occasion, or is ever likely to have occasion, to use the other avenues, and therefore, though they may have a technical right to pass and repass freely over them, it would seem that a removal of the fences therefrom would be no real benefit to them, while it would oblige the defendant to incur a great deal of additional trouble and expense to protect bis property. In these circumstances we think we may properly leave tbe conplainants, as to these fences, to their remedy at law, without ordering the removal. Decree accordingly. Footnotes [1] The same land as that spoken of in Brightman v. Chapin, ante, p. 166.