Spackman v. Steidel

Mr. Justice Merche, delivered the opinion of the court, May 5th 1879. This was an action of trespass on the case to recover damages for the alleged obstruction of a right of way. The land over which the defendants in error claimed the right, lies immediately west of and adjoining their lot; but in the adverse possession of the plaintiff in error. Both parties claim under title derived from Leeds. The claim of the defendants in error rests on an implied grant, by reason of their grantors having designated the western boundary of the lot as a twenty-feet street. It is settled law in this state, that when a public street or highway is called for as a boundary in a deed, the grantee takes title in fee to the middle of the street, if the grantor had title to it, and did not expressly or by clear implication reserve it: Paul v. Carver, 12 Harris 207; Same case, 2 Casey 223; Cox v. Freedly, 9 Id. 124; Trutt v. Spotts, 6 Norris 239. Where the street called for a boundary is not a public highway, nor dedicated to public use, the grantee does not take title in fee to the centre of it, but by implication acquires an easement or right of way only over the lands: O’Linda v. Lothrop, 21 Pick. 292; Robinson v. Myers, 17 P. F. Smith 9. It appears that the existence of the street in question, had been recognised on paper, at an early day; but it was not on the city plan, and had no marks or signs on the ground designating it. It was referred to by Leeds in his deed of 1850, under which the [459] defendants in error claim, as a twenty-feet street; but as the learned judge says, in his charge to the jury, “it does not appear that it was ever opened. It only existed on paper, and even as laid down on paper, it opened into, or led into, nothing; it was even on paper what we call a blind alley.” Wo have not been furnished with all the evidence, but the judge further said: “ A number of witnesses, beginning with Mr. Vankirk, who, with his partner, Leeds, built the house of the plaintiff (below) a great many years ago, certainly more than thirty years, and Mr. Lanning, who put up the factory there in 1850, and many others, whose names I .do not now recall, testify that this locus in quo was fenced across up to the plaintiff’s house, and in the exclusive use and enjoyment of the parties, through whom the defendant claims title, and by the defendant himself, for nearly thirty-five or forty years. In point of fact, it seems that no one knew or heard of the existence of this street, until lately discovered as a boundary in the deeds, by the surveyor.” The correctness of this statement of the testimony was not questioned on the argument. Wo see nothing to contradict it. Thus it appears not only that this “ blind alley” was never opened, but that from 1850 down to the commencement of this suit in 1870, it was enclosed by a fence and used in common with the other lands by the plaintiff' in error, and by those from whom he derived title. No denial of that right to the exclusive use appears to have been made by any claimant of the title of the defendants in error, during all that time. It is not shown that the defendants in error, or their predecessors in title or possession, ever had any openings for egress or ingress into this alleged alloy, or for light or air. The question now presented is, whether the defendants in error can sustain this action under an implied covenant made more than twenty-one years before suit brought, when no possession was ever given or taken under the deed. This suit is not between any of the parties to that deed. It is not an action of covenant based on the contract. It is for a tort. The claim to recover rests on the alleged tort of the plaintiff in error, in erecting and maintaining extensive buildings on the land claimed to be a street. The view we take of the case, makes many of the questions relating to an action of covenant irrelevant, and we therefore refrain from considering them. The complaint of the defendants in error is not for the disturbance of an easement once enjoyed, but substantially to recover in an action ex delicto for damages to a right, based on an implied covenant, of which they never had any possession. After this great lapse of time, we think the present action cannot be sustained under the whole evidence, and the jury should have been so instructed. The sixth assignment is therefore sustained. It is unnecessary to consider the others any further than they are covered by what we have already said. Judgment reversed.