Allen v. Linquist

Mr. Justice Van Orsdel delivered the opinion of the Court: Counsel for appellant contend that the building of the fence by Allen’s predecessor on the parking which belongs to the United States converted it into a part of the real estate which could not pass to him by the conveyance of the adjoining lot. While it is true that “a thing corporeal cannot be appurtenant to a thing corporeal,” the incorporeal right to use land may be appurtenant to land. In other words, the right of Allen to use the parking was an appurtenance passing to him with the fee in the lot. Being such, so long as he permitted the fence to stand and inclose the parking, presumably for his private convenience, he was responsible for its condition. The right of private use of the parking by the abutting lot owner in this District is a right granted by the public, and it can be taken away at will. The fence was built for the protection and accommodation of the abutting property. When Allen purchased the property, the fence and the right to use the inclosed parking passed as appurtenant thereto. Tie was not required to keep the fence there; but, so long as he permitted it to remain, he was responsible for its condition and proper repair. The rule here is not different from that applied where property owners construct for their own use openings under and through the sidewalk in front of their premises. In such eases, the property owner is held liable if the sidewalk, by reason of such use, becomes a nuisance, or in such repair as to cause injury to a person using the walk. In Canandaigua v. Foster, 156 N. Y. 354, 41 L.R.A. 554, 66 Am. St. Rep. 575, 50 N. E. 971, 4 Am. Nog. Bep. 441, which was a damage suit for injuries sustained from a defective grate covering a coal hole in the sidewalk in front of defendant’s premiser., the court said: “It was his duty, however, as long as he owned and was in full possession of the premises, to use reasonable diligence to keep the grate in repair, so that it would be as safe as any other part of the sidewalk. Congreve v. Morgan, 18 N. Y. 84, 72 Am. Dec. 495; McGuire v. Spence, 91 N. Y. 303, 43 Am. [542] Rep. 668; Shearm. & Redf. Neg. 5th. ed. § 703. It was built for his accommodation, and was a benefit to his property only, and the law placed upon him the obligation of using diie care to keep it in a suitable and safe condition for the public to walk over as a part of the sidewalk. Proper construction in the first place was not enough to relieve him from liability, but the duty of inspection and repair continued while he owned and was in the exclusive possession of the premises. The duty ran with the land as long as the grate was maintained for the benefit of the land.” The joint liability of Allen and the District of Columbia is clear. The judgment appealed from is therefore affirmed with costs. ' Affirmed.