Frank v. Benesch

Robinson, J., delivered the opinion of the Court. The plaintiff and defendant are owners of adjoining houses, and between the two houses there is an alley way, used in common by the respective owners, for the ⁵⁹ purpose of ingress and egress to and from the hack buildings and premises. The joists of the defendant’s second story, run across the alley, and into the wall of the plaintiff’s house, and to the extent of the width of the second story of defendant’s house the alley is a covered way. At the time the plaintiff bought his house, and for more than twenty years prior thereto, there was a wooden gate at the entrance to the alley.

This gate was taken down hv the defendant, and a new gate put up, about five feet back from the entrance. He also put a wooden platform, about seven inches and a half high, across the alley, so that in going in and coming out the alley, persons were obliged to step on this platform. He also wainscoted the walls leading from the old entrance to the new gate, and thus narrowed the width of the alley an inch and a half. These acts on the part of the defendant, it is alleged, are an invasion of the plaintiff’s legal rights, even though such acts may not in any manner interfere with the reasonable and necessary use by him of the alley way.

The two houses originally belonged to the same person, under whom both the plaintiff and defendant claim. The right of way thus claimed by the plaintiff, being derived from a grant, the nature and extent of this right, must be governed by the terms of the grant itself. Now, by reference to the defendant’s deed, the alley we find is entirely within his lines, and he is therefore the owner of the freehold. The plaintiff’s deed merely calls for the alley, which is described as being about two feet wide, with the privilege of using the alley in common with the defendant.

The case, then, is one in which.the defendant is the owner of the alley itself, and the plaintiff is the oivner of a right of way over it. And, such being the case, we take the law to be well settled, that where a right of way is granted, in the absence of metes and bounds, or description of some kind, defining the width of the way, the way owner ⁶⁰ is only entitled to the necessary and reasonable use of the way for the purposes for which it ivas granted. The plaintiff’s right being then a mere easement, all other rights and benefits of ownership consistent with such easement, belong to the defendant as owner of the freehold. And the obligation on the part of 'the defendant as such land owner, or servient owner, is that he shall not