Ott v. Kreiter

Mr. Justice Gokdon delivered the opinion of the court, October 5th, 1885. As both plaintiff and defendant claim title to the land in controversy from A. C. Smith, as their common grantor, we have but to consider the effect of the conveyance to Kreiter, of the 12th of August, 1881. For, as the learned judge of the court below well said, if Smith, at that time, conveyed the disputed strip of land to the defendant, he had nothing which he could afterwards convey to Gilbert or any one else. There is no dispute about the fact that the deed of Wiestling and wife, of the 15th of February, 1867, vested in Smith the land in suit, though, in fact, the description as found in that deed would only carry the lot thus conveyed to the eastern line of the Miilerstown turnpike road, and to a point on the southern end of that line between Wiestling and Smith. As, however, the call is for the public road above named, according to the doctrine, as held in the cases of Paul v. Carver, 2 Ga., 223, and Cox v. Freedley, 9 Ca., 124, Smith was entitled to hold to the middle of that road. The question then is, whj' has not Kreiter the right to claim the same boundary as did his grantor? The description in the two deeds is substantially the same. The defendant’s conveyance calls for the Miilerstown turnpike, or old Second street; the house which Smith sold with the lot is flush with that street and has its pavement upon it, hence the street is necessarily appurtenant to the premises, absolutely required for the proper enjoyment of the property, and that' Smith intended that the line of the lot should extend to the east side of the present Front street, he himself admits. What then is the difficulty, and why is Kreiter to be deprived of an important easement which was there when he bought; which is called for bv his deed, and of which he has had the possession from the tune of his purchase until the present period? How does it come that this little wedge-shaped strip, part of the road on which the house was built, remained in Smith notwithstanding his deed; Ids act by which it was made appurtenant to the premises, and his declarations to Kreiter that it was so appurtenant, without which it would have been impossible for him to have sold the property? The plaintiff thinks it is a sufficient answer to these questions to state that, at the time of Smith’s sale to Kreiter, the eastern part of the Miilerstown turnpike road had been vacated, and that hence the line of that road must be taken as the line of Kreiter’s purchase, and cannot extend beyond it. This fact might have some force if this [378] road had, at that time, not only been vacated but closed up, or, as in the case of the Union Burial Ground Society v. Robinson, 5 Wh., 18, had never been opened, but neither of these conditions is found in the case; there was the open street on which Smith had built, which was used with the house, and recognized in his deed. Moreover, that deed professed to convey to the defendant the whole of the premises conveyed by Wiestling to Smith, so that if Smith took to the middle of the turnpike so did Kreiter. But even were the fee not thus conveyed, the adjacent street must be regarded as an easement passing with the property, or as an appurtenant necessary for its enjo3unent. Mr Justice Mercur, in the case of Spackman v. Steidel, 7 Norris, 453, holds, that where a street called for as a boundary, is not a public highway, though the grantee does not take a fee to the centre of it, yet he does thereby acquire an easement or right of way therein, and the same doctrine will be found in Van Meter v. Hankinson, 6 Wh., 307. Furthermore, it was said, per Lewis, Chief Justice, in Paul v. Carver, when speaking of the rights of grantees in the adjacent ways and streets, that the intent of the parties as disclosed by the whole scope of the conveyance, and the nature of the property granted, must be the controlling rule. Thus, where a mill is granted, the water-power goes with it as a necessary appurtenance, and so also, as in Swartz v. Swartz, 4 Barr, 353, the grant of a saw mill with the appurtanances, was held to convey not only the water-power by which the mill was driven,but also the land covered by the water. Conceding, then, that Kreiter has not a fee in the land in suit by virtue of the express words of the deed, vet by legal implication he has the right to the use of the street, as a street, by virtue of the call in that deed, and he may also claim the fee by like legal implication arising from the situation of the property, and the obvious intention of the parties; in other words the street must be regarded as appurtenant to the premises granted. The judgment of the court below is affirmed.