Rogers v. Bollinger

Hughes, J. R. M. Johnson, on June 7,1856, (being-the owner of lot 1, block 8, in the city of Port Smith, situated at corner of Garrison avenue and Ozark or first street, fronting seventy feet on Garrison avenue, and running back on Ozark street 100 feet, abutting at the rear end on lot 3 of said block 8,) by warranty deed conveyed to the father of appellees twenty-three and one-half feet of said lot fronting on Garrison avenue, and running back ninety-six feet to “an alley four feet wide, leading to Ozark street.” This is the description shown to have been in the deed, so far as relates to the alley. The deed was filed for record, but the record and deed were destroyed by fire, and its contents were proved by parol. On the 3d of October, 1885, R. M. Johnson conveyed by deed to appellant an unsold portion of said lot one, fronting on Garrison avenue and Ozark street, and between the lot previously sold to appellees’ ancestor and Ozark street, and described it as extending back 100 feet, saying nothing about an alley. This extent took in and included the four foot alley in rear of the lot. The proof shows that Bollinger and his heirs used this alley as a passage way from the rear of his store-house, on the part of the lot he purchased, to Ozark street; and there is some controversy as to whether they had abandoned it, and were barred by lapse of time from claiming the right to use it, before this suit was brought, which is a suit in equity to perpetually enjoin the maintaining over said alley a small brick house erected by the appellant over said alley, after her purchase, against repeated objections and protestations of appellees, and warning given by them to appellant or her agent (her husband) that appellees claimed the right to use and would insist upon having said alley kept open. Upon the evidence, the court granted a perpetual injunction, and ordered the removal of the structure from over the alley. This appeal is taken to reverse that decree. The conveyance by Johnson to the appellee’s ancestor describing the lot sold by him as bounded at the rear end upon 1 ‘ an alley four feet wide leading to Ozark street,” estops the grantor, and those claiming under him with notice of the conveyance, from shutting it up, •so as to prevent his grantee making pse of the alley for his own accommodation in the enjoyment of his purchase. Smith v. Lock, 18 Mich. 59. This was not merely a description, but an implied covenant that there was such an alley. Parker v. Smith, 17 Mass. 413; Livingston v. Mayor, 8 Wend. 85; Thomas v. Poole, 7 Gray, 83; 2 Herman on Estoppel, sec. 615; Washburn, Easements and Servitudes, p. 155; Tufts v. Charlestown, 2 Gray, 271; 2 Deylin on Deeds, sec. 1027. This covenant is ■binding upon the grantor, and subsequent purchasers, with notice of the conveyance. There was notice by the •record of the deed. The proof was conflicting as to the abandonment of the alley by the appellees, and perhaps pretty nearly balanced. We are pursuaded that the chancellor was ■correct as to this. The decree is affirmed.