Comstock v. Sharp

McGrath. C. J. Complainant is the owner of lots 5, 6, 7, 8, and 9, on the south-west corner of Fourth and Willow streets, just outside of the city of Jackson. The lots front on Willow street, and were numbered from west to east, but they had for many years been inclosed and occupied as one parcel, the dwelling thereon fronting on Fourth street. The territory was platted and the plat recorded in 1870, by one Lathrop. It is only claimed for this plat that it was an express common-law dedication. Lathrop, in October, 1871, conveyed the land north of the center of Willow street by metes and bounds, subject to the public use of Fourth, Willow, and other streets. In July, 1873, Lathrop conveyed to one Bush the territory lying south of the center line of Willow street, excepting the lights of the public in the streets. In 1874 Bush conveyed these lots to one Babcock, she to Miller, he to Jenks, and Jenks, in May, 1884, to complainant, by lot number and reference to the plat. Defendant, in 1883, acquired title to the land north of the center of Willow street, and to certain of the lots west of complainant’s lots. In October, 1883, Bush and -wife conveyed to defendant certain lots, and “all our right, title, and interest” in the south half of Willow [178] street, from the west line of Fourth street to the west line of lot 5. In February, 1884, Jenlcs, complainant’s immediate grantor, conveyed to defendant the land in Willow street from Fourth street west to the west line of lot 5. The deed contained the following : “It is understood and agreed that this deed shall not only convey all present interest of said grantor in and to the lands herein described, but all interest that might be acquired by her, or her heirs or assigns, in and to any part thereof in case of the vacation of what is marked upon said plat of Summitville as Willow street, as the owner of lots 5, 6, 7, 8, and 9, in said block 2, and consent is hereby given to the closing of said Willow street.” A controversy arose between complainant and defendant, soon after complainant’s purchase. Defendant succeeded finally "in constructing and maintaining a fence across the east end of Willow street, and this bill is filed to compel the removal of the obstruction. Complainant insists that the interest of an abutting owner in a street is in the nature of an easement appurtenant to the land, passing only with a conveyance of the land. The cases cited hold that the grantor of a right of way has the right to limit the grant, and that the grantee takes it subject to restrictions imposed, and cannot enlarge or abuse his privilege (Davenport v. Lamson, 21 Pick. 72; Shroder v. Brenneman, 23 Pa. St. 348); or, that a grantor, having platted and conveyed certain lots in a city, cannot afterwards appropriate the way to any use inconsistent with its use as a public street (Story v. Railroad Co., 90 N. Y. 122; Hills v. Miller, 3 Paige, 254; Watson v. Bioren, 1 Serg. & R. 227). The right of way, in the present case, arose from the plat and the subsequent conveyances. As between the parties, the conveyance by Jenlcs and the consent to the closing of the street were a release or relinquishment of record of the right to use the street. It is unimportant,, whether Jenks was at that time the owner of the fee in the street, or whether the fee passed by the conveyance [179] from Bush to defendant. Whatever interest Jenks had passed by the conveyance to defendant. The rights of the public or of other abutting owners are not in question, and the original grantor has parted with his interest. In such case, owners of land on opposite sides of the same street may, as between themselves, consent to the closing of the street, or anticipate its vacation, and either may convey to the other all interest in the land occupied by the street. They have, as between themselves, the disposing power over the estate. Washb. Easem. p. 26, par. 13. The decree is affirmed, with costs to defendant. The other Justices concurred.