Albert v. Thomas

Bryan, J., delivered the opinion of the Court. Christian Thomas brought trespass quare clausum fregit against Abraham E. Albert. The defendant pleaded not guilty, and for a further defence set up a right-of-way over the locus in quo. This right is claimed under certain deeds made by the executors of Samuel Eichelberger, deceased, in pursuance of power given in his will. It has been a very difficult matter to obtain from the record a clear idea of the relative locations of the different lots of ground mentioned in the evidence. In most instances their boundaries are stated to he other lots which are described only by their owners’ names. A simple diagram would have relieved the Court of a good deal of Libor. It was not disputed that the plaintiff was in peaceful possession, under enclosures, of the lot of ground on which the trespass was alleged to have been committed. His title was derived from two deeds; one from Eichelberger’s executors to Middlekauff, and the other from Middlekauff and wife to plaintiff’s father, under whose will he claimed. Both of these deeds were made in 1866, and were in fee. The deed to Middlekauff conveyed lots designated on a plat of Eichelberger’s real estate as numbers 2, 3, I and 8. This plat was not produced at the trial, and was stated to have been lost. The description of them given in the deed is as follows: “ Numbers 2 and 3, fronting on the west side of South Potomac street, in Hagerstown, and adjoining the property sold by us as executors aforesaid,' to Matthew S. Barber, on the north, and on the south the lot sold to John Gr. Knode, fifty-eight feet, and running back with the two parallel lines one hundred and eighty feet to lot No. I; also lot No. I, lying west of — 187 — lots Eos. 2, 3, 4, 5 and 6 on said plat or map, and adjoining the land sold to said Matthew S. Barher on the north, and Costenboder on the west, and lot Ho. 8 and the lands of James E. Roman on the south, containing and laid out for said Eo. 7, one and one-quarter acre and thirty perches of land; also lot Eo. 8, lying west of the property of Thomas Boyd and Mrs. Margaret A. Heffner, and lot Eo. 7 on the north, and on the south by an alley, and lot Éo. 9 sold to Christian Thomas, and on the west by the lands of James D. Roman, and containing and laid out for said Eo. 8, one acre and thirty-six perches of land, with all the improvements and advantages belonging thereto, and subject to an alley laid out on said plat for the use and benefit of the lands described in said map or plat.” The deed from Middlekauff and wife to Thomas conveyed lot Eo. 8; the boundaries were the same as given in the deed just mentioned, which was referred to as the source of the title, except that the eastern boundary was said to'be “an alley reserved in the sale of said deceased's estate, for the benefit of the purchasers of said real estate;” the rest of the description was in these words: “ Containing one acre and thirty-six perches of land, more or less; said lot being Eo. 8 on a plat or maja of said deceased's estate, made * * * * for the executors of said Eichelberger, deceased.” The defendant's title, was by demise from Eleanora and Florence Albert; the Misses Albert acquired their title from Laura Y. Heffner, who conveyed to them in 1886 a lot of ground described as being on the west side of South Potomac street and running back one hundred and sixty-nine feet to the east margin of an alley. A few feet of this lot, from five to eight, hounding on Potomac street, and also on the alley, had been purchased by Miss Heffner's mother from the Eichelberger executors; the other portion' of the lot did not come from the Eichelberger estate; in the deed to Mrs. — 188 — Heffner the land sold to her was described as running back one hundred and sixty-nine feet to an alley. This alley was about ten feet wide. The land conveyed in the deed to Middlekauff was not bounded on the alley, but it included the bed of it. It is declared that all of it is subject to an alley, laid out on the plat above mentioned for the use and benefit of the lands described therein, which means, of course, that the fee is conveyed to the grantee, and an easement is reserved; and in point of fact an easement identical with this reservation was granted to Mrs. Heffner. Moreover, we see that lots 2 and 3 in the deed to Middlekauff run back one hundred and eighty feet, which reached the western margin of the alley, as the one hundred and sixty-nine feet of the Heffner lot reached its eastern margin. Lot No. 8 is described as lying west of the property of Thomas Boyd and Margaret A. Heffner, and as it included the whole of the alley, its contact with the Heffner land was on the eastern margin of the alley. The intention of the deed from the Middlekauffs to Thomas was to convey the whole of lot No. 8; and according to Buchanan’s Lessee vs. Steuart, 3 Harris and Johnson, 329, we must give effect to that intention, notwithstanding its mention of the alley as its eastern boundary. The general words of description are adequate to carry out the manifest intention of the deed, and they cannot be defeated by a discrepancy in one of the details. The evidence tended to show that the defendant was building a stable on the Heffner lot, which was occupied by him under a demise from the owners; but the stable was not located on that part of the lot which came from Eichelberger. He broke down the plaintiff’s fence, and hauled the materials for building the stable over the plaintiff’s land along the line of the alleyway. He did not approach the lot on the side where the Eichelberger portion lay, but on the opposite side, where the property — 189 — was situated which had not belonged to Eichelberger; he deposited the materials on this latter portion, and did not use the alleyway for the purpose of access to the Eichelberger portion, or for any purpose connected with this portion. It is settled beyond dispute that a man who has a right-of-way over another’s land cannot use it except according to the terms of the grant. It is said that, “as every easement is a restriction upon the rights of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant heritage, the effect of which will be to increase such restriction.” Here the defendant was not using the right-of-way for the purpose of entering the lot to which it was appurtenant, nor for any purpose connected with it; but was using it for the pm-pose of building on an adjoining lot belonging to him. The circumstance that the two lots were within the same enclosure cannot be of any importance. The authorities show how severely these rights-of-way are restricted. In Woolrych on Ways, page 34, (4 Law Library,) several cases are cited. We will quote two of them: “The defendant justified by prescribing for a right-of-way to a certain close, but the plaintiff replied that the defendant had brought a load of hay which grew upon another close, along the way, and this was held a sufficient answer, for if a man have a private way to a close, he must not enlarge it to other purposes. So, where in trespass it appeared that the defendant had a way over the plaintiff’s ground to another close, B, and that he not only used the way thus, but drove his beasts to a third close, lying still farther off, it was said that when the defendant had driven his beasts to the close B, to which he had his way, he might drive them whither he would. But it was answered, that the defendant might purchase a hundred or a thousand acres adjoining to the close B, and thus — 190 — the plaintiff would lose the benefit of his land; and the Court acceded to this argument, and gave their judgment for the plaintiff, thereby supporting the doctrine that a grant ought to be construed according tó the intent of its original creation.” In Davenport vs. Lamson, 21 Pickering, 72, the defendant had a right-of-way over the plaintiff’s close to a three-acre lot, and he also owned a nine-acre lot, which was beyond the three-acre lot, adjoining it, but not separated by any fence, fie loaded his cart with produce taken from each of his lots and passed with it from the three acre lot over the plaintiff’s close; It was held that he was liable in trespass guare clausum j'regit for abusing his right-of-way. The Court said “he had a special right of way for going to and from the three acre close, and it would not be consistent with the terms of this grant to use the right-of-way to other closes beyond the three-acre close.” To the same effect is Skull vs. Glemster, 111 Eng. Common Laxo Reports, 80. The Court in its instruction left it to the jury to find whether the defendant was using the right-of-way for the purposes and benefit of the Eichelberger portion of the lot, or of the other portion. On the first hypothesis the verdict was to be for the defendant; on the second for the plaintiff. The jury found for the plaintiff. There was some evidence tending to show that the plaintiff and his father had held continuous possession since 1866, adversely to the claim of a right-of-way, and there was also contradictory evidence on this point. The evidence of a user of a right-of-way by the defendant, and other persons, did not tend to establish the right independently of the Eichelberger deeds. As the Court’s instruction conceded this right to the defendant, the questions of user and adverse possession are unimportant in the present condition of the case. The questions involved were left to the jury on terms as favor — 191 — able to the defendant as any aspect of the case could warrant. We see no error in granting the plaintiff’s prayers or in rejecting the defendant’s. (Decided 4th December, 1890.) As the judgment will be affirmed, there is no necessity for discussing the motion to dismiss the appeal. Judgment affirmed.