Feldstein v. Segall

Markell, J., delivered the opinion of the Court. These are cross-appeals from a decree enjoining defendants from obstructing (1) a ten foot right of way running south from Bank Street 195 feet to a fifteen foot right of way which runs east and west and leads into the ten foot right of way or (2) a thirteen foot, one- ²⁸⁸ quarter inch right of way bordering on the east side of the ten foot right of way and extending north from the fifteen foot right of way fifty-eight feet, six inches. This was a suit to establish the widening by prescription to twenty-four feet of a ten foot right of way .granted by deed. By an amended bill plaintiffs narrowed their claim from twenty-four feet to twenty-three feet.

By the final decree the court allowed plaintiffs’ claim, to a width of twenty-three feet, one-quarter inch, as to the southernmost fifty-eight feet, six inches of the ten foot right of way, and disallowed it as to the northernmost 136 feet, six inches of the ten foot right of way. Plaintiffs’ right to use, in common with others, the ten foot right of way and the fifteen foot right of way is not disputed. Defendants appeal from allowance of plaintiffs’ claim to the extent of fifty-eight feet, six inches; plaintiffs appeal from disallowance of it to the extent of the remaining 136 feet, six inches. The rights of way and other property involved in this case lie between Eastern Avenue on the south, Bank Street on the north, Eaton Street on the west and Grundy Street on the east, i.e., in the same block as the property in Perellis v. Baltimore, 190 Md. 86 , 57 A. 2d 341 .

The eastern end of the alley in that case was about thirty-four feet west of the west side of the ten foot alley in this case, with no connecting alley or way between them. There is no relation between that case and this and, except proximity of location and the fact that each case relates to a blind alley, no similarity between them. In the early part of this century Henry' Lammers acquired various properties in this block, which did not extend to, and had no outlet to, Eaton or Grundy Streets. In or shortly before 1918 he died.

Under a decree dated November 1, 1918 these properties were sold and conveyed to various purchasers by John M. Requardt, the trustee named in the decree. Among these purchasers were Julius Miller and wife, defendants’ predecessors in title, and Christian Habersack and wife, plaintiffs’ predecessors in title. By a deed, dated i)e ²⁸⁹ cember 19, 1918 there was conveyed to the Millers the property Nos. 3904 and 3906 Eastern Avenue, beginning on Eastern Avenue, 284 feet, 10% inches east from Eaton Street, running east thirty-five feet, one inch on Eastern Avenue and north ninety feet “to a fifteen foot alley to be there laid out by the said Julius Miller and others interested therein * * *, it being also understood that an alley ten feet wide is to connect with said fifteen foot alley to be laid out * * * through the land of the late Henry Lammers to the north and which said alley shall run from Bank Street and connect with the said fifteen foot alley”. By a deed dated March 12, 1919 there were conveyed to other purchasers, and by mesne conveyances of dates not shown to the Millers, among other properties, two on Bank Street beginning about 284 feet east of Eaton Street, running east on Bank Street eighty-two feet, ten and seven-eighths inches and south 195 feet to the fifteen foot alley, and one west of the ten foot alley, the end of the fifteen foot alley and Nos. 3904 and 3906 Eastern Avenue, but not extending north to Bank Street or south to Eastern Avenue, the western side of the ten foot alley being a northerly extension of the western boundary of Nos. 3904 and 3906 Eastern Avenue.

Thus the south end of the ten foot alley and the west end of the fifteen foot alley meet at a right angle. The ten foot alley is the only outlet or inlet between the fifteen foot alley and any street. All these properties acquired, directly or by mesne conveyences, from Requardt, trustee, were conveyed by the Millers to defendants by deed dated July 11, 1944. The eastern boundary of the Bank Street properties is a northerly extension of the eastern boundary of No. 3912 Eastern Avenue, which does not appear to be owned by either plaintiffs or defendants.

The Bank Street properties now owned by defendants, and Nos. 3904, 3906, 3908, 3910 and 3912 Eastern Avenue are apparently the only properties which were conveyed by deeds which call for, or give rights to use, the fifteen foot alley and its outlet the ten foot alley. ²⁹⁰ By a deed dated December. 21, 1918 there were conveyed by Requardt, trustee, to the Habersacks; the properties Nos. 3908 and 3910 Eastern Avenue, adjoining on the east Nos. 3904 and 3906, running east forty-nine feet on Eastern Avenue and north ninety feet to the fifteen foot alley, “with the use of both of said,, alleys in common”, (the fifteen foot alley and the ten foot alley). On June 23, 1919 the Habersacks leased No. 3910, for a thirty-nine dollar ground rent, to their daughter and son-in-law, John T. Croucher. By a deed dated January 3, 1946 the Habersacks and the Crouchers conveyed Nos. 3908 and 3910. to plaintiffs, with the use of both of the alleys, extinguishing the thirty-nine dollar ground rent. In 1918 Eastern Avenue was principally a residence street and was not, as it now is, “a heavily congested traffic artery”.

Perellis v. Baltimore, supra, 190 Md. 86, 90 , 57 A. 2d 343 . As the original Miller deed shows, the fifteen foot alley and the ten foot alley did not exist until the Lammers property was sold, and thereby divided, and the alleys were called for in the deeds. The Lammers property north of the fifteen foot alley was not improved or enclosed. Apparently, the only improvements now there are a concrete block of garages, behind No. 3912 Eastern Avenue, about nineteen feet deep, extending north about sixty-eight feet and another block of such garages, a little deeper, extending the same distance north, facing the ten foot alley, about twenty-three feet, one-fourth inch east of the western side of that alley.

On defendants’ property west of the fifteen foot alley and the ten foot alley is a third block of garages, facing on or near the western boundary of the ten foot alley. The property north of the fifteen foot alley is now (i.e., in 1947) enclosed on the north and east by a “new cyclone fence”. For a little less than twenty-three feet east from the northwestern corner on Bank Street there is, in place of the curbstone which runs east on Bank Street, rounded off concrete which permits vehicles to cross a concrete sidewalk into .or out ²⁹¹ of the property to the south. There are gates in the fence which open at this twenty-three feet.

Who made the break in the curbstone is not shown, but the obvious inference is that Miller did. The twenty-three feet west of the second block of garages is paved with concrete for fifty-eight feet, six inches north of the fifteen foot alley. No other part of the ten foot alley or the twenty-three foot right of way claimed by plaintiffs has been paved. The northern part of the claimed thirteen foot right of way is a beaten way and has been macadamized to the extent of spreading some small stones there.

The northern part of the ten foot alley apparently has never been used at its true location. It is hilly, its maximum height about two feet, six inches above the yard. Things which have grown or have been thrown there reach a greater height. It has not been graded.

There is no apparent obstacle to grading except the expense, which presumably would not be large. The garages on the property north of the fifteen foot alley and the break in the curbstone on Bank Street were in existence “before 1927”. When that property was first enclosed does not appear; evidently it was some years after 1918. Mrs. Goldie Mannes, thirty years old (in 1950), was born at 3904-3906 Eastern Avenue and lived there until 1944.

As a child, she and other children played on the lot south of Bank Street. The lot was not fenced in; it was open. She saw vehicular traffic on the lot; saw automobiles and trucks parked there; saw people other than her father’s [Miller] tenants use it. Mr. Croucher drove his automobiles back there; he was all over the place, he did not drive just in one straight line.

We cannot assume that this testimony related to only the first seven years of her life. Early use of the northern lot or the ten foot alley comprised miscellaneous uses of an open lot which had little or no relation to the original purpose and the present use of the alley as an inlet and outlet for vehicular traffic to and from the Eastern Avenue properties that bordered on the fifteen foot alley. For many years a ²⁹² barrel or cooperage shop has been operated on the lot; just where and in what building is not shown. Most of the early traffic between Bank Street and Eastern Avenue was not vehicular, but pedestrian.

Nos. 3904-3906 Eastern Avenue was described as running east on Eastern Avenue “to the west side of a covered alley there situate * * * with the use of said covered alley in common”. This “covered alley” was part of the fifteen foot frontage of No. 3908 on Eastern Avenue. Mr. Croucher says, “Lots of people made use of it [“that way”, the ten foot alley], came through there at times. People used to come through there and go through my back entrance to go to Eastern Avenue.

Of course I had a gate there. Lots of times the lock was broken off the gate to get through. I had three gates there, a gate in front of the home, a gate at a twenty foot alley [?], and a gate at the end of the fence. They were torn off lots of times.” Vehicular use by Mr. Croucher, or by others seen by him, of the northern lot or the “ten foot alley” had little more relation to the original purpose or the present use of the alley.

He says, “I used it [“that way”] from the time I lived there clean until I moved. I had vegetables there, and I had a truck come up and gather them and take them away. * * * I used that practically every day.” “* * we ka(j a man iived next door to me had a truck. He pulls up in there.” Mr. Croucher rented a garage on the lot. He never had “a tractor or trailer units” deliver any merchandise to his home.

The cesspool cleaners came in through the lot. Mr. Croucher “most of the time” had his coal delivered through the front of his house; if he could not get it in the front — if it was blocked up, it was run in the back. Plaintiffs conduct a hardware store on their property. For about twelve years before their purchase they were tenants of No. 3912 and there conducted the same or a similar business.

After their purchase they built a new building with a loading and unloading platform at the fifteen foot alley. Defendants say in their answer, ²⁹³ but offer no evidence to show, that the platform in fact encroaches on the fifteen foot alley. Plaintiffs say that for sixteen years they have without objection received merchandise and made deliveries to customers by trucks through their claimed twenty-three foot right of way and the fifteen foot alley, that many of the trucks are too large to turn from a ten foot alley into a fifteen foot alley, or vice versa, or to turn around in alleys of that size, and that use of the twenty-three foot right of way is therefore essential for these purposes. In 1947 defendants placed and locked gates across the twenty-three foot entrance on Bank Street.

On demand of plaintiffs they unlocked the gates, but they erected one or more posts marking the