Feldman v. Stoltz

Bond, C. J., delivered the opinion of the Oourt. The parties to this appeal are the respective owners of properties on two sides of an alley in Salisbury, the appellants on the south side and the appellee on the north; and the appellants have applied for an injunction to restrain encroachment on the bed of the alley by the wall of a new building being erected by the appellee, alleging an obstruction of their use of the alley by it. It appears that the alley was a public right of way, established by user only, originally running in from the street in front of these two properties to a dock which once existed on a branch of the Wicomico River to the west, in the rear. The controversy is principally one over the location of the lines of the alley.

The alley was never laid out on definite lines, and the location is to be determined now by the establishment of the lines of the properties on either side, as defined in conveyances and in buildings. And the testimony leaves these sources of information somewhat indefinite. The appellants adduced testimony to measure the width and location of the alley from the lines of former construction on the appellee’s property, from old surveys made of it by one of the witnesses, and upon a declaration of a former owner locating his line. This testimony did not fix the line exactly, a margin of doubt of several inches being testified to; and it gave the alley a width varying from that shown on some earlier surveys, giving it now a uniform width of iry2 feet, whereas earlier surveys gave it different widths in different portions.

The surveyor who so testified cannot now locate the boundaries on which he made his previous surveys, but from memory of those surveys, and from remaining marks on the land, the relative position of which he recalls, he feels able to estimate that the appellee’s wall was encroaching on the bed of the alley from 2 to 2y2 feet. ⁵²³ The appellee’s testimony was devoted to