Oberheim v. Reeside

Urner, J., delivered the opinion of the Court. The appellants are owners of renewable ninety-nine year leasehold estates in four lots of ground fronting on North avenue, in Baltimore City, indicated, respectively, by the numbers 21, 22, 25 and 26 on the following plat, which was used in the case for the purposes of illustration: ²⁶⁸ Note: A — B—C—D. Land described in lease from Elias Blackshere and wife to Marvin H. Murray. Being also lot thirdly described in deed from A. J. Ulman and wife to Elias Blackshere, recorded among Land Beeords of Baltimore City in Liber B. 0., No. 1778, fol. 122, etc. D — E. Alley referred to as extending northerly to Herbert Street from the northwest corner of lot, thirdly described, in deed recorded as aforesaid in Liber B. 0,, No. 1778, fol. 122, etc. ^{269 270} The lots in question are subdivisions of a parcel of land which was formerly owned in fee by Alfred J. Ulman, and which comprised all of the block shown on the plat except the two lots at the western end. On March 14th, 1899, Ulman conveyed in fee the southern portion of bis land to Elias A. Blaekshere, wbo subdivided it into the lots represented by numbers 3 to 26, inclusive.

These were demised by Blaekshere for the term of ninety-nine years, renewable forever, to' Marvin H. Murray on January 24th, 1900, and the latter erected on the lots a row of twenty-four dwelling houses. In the deed from Ulman to Blaekshere the rear line of the ground conveyed, running 333% feet from the eastern limit of the church property shown on the plat to the western side of Monroe street, was described as binding on a ten-foot alley “here laid out” and the grant included the use of this alley “in common,” “together with .the use of any alley ten feet wide to be laid out by Alfred J. Ulman extending northerly parallel to Payson street from the northwest-corner of the above lot to Herbert street.”- These alleys are outlined on the plat. The lease from Blaekshere to Murray conveyed the subdivided lots, together with the improvements, rights and appurtenances, and the use in common of “an alley ten feet wide to be laid out by Alfred J. Ulman to Herbert street as mentioned in” the preceding deed. By mesne conveyances the four lots first mentioned, and the rights and appurtenances thereto belonging, were acquired by the appellants.

Abo-ut the year 1906 the appellees became the owners of the northern portion of the Ulman land fronting on Herbert street. Their deed is not in the record, and the precise date of their acquisition of the property does not appear; but it is admitted that their title was derived through Ulman. In March, 1907, they began to erect upon the land a row of twenty dwellings.' The westernmost house was located across and completely occupied the northern end of the space provided in the deed from Ulman to Blaekshere for the ten-foot ²⁷¹ alley extending to Herbert street. A fence was constructed by the appellees along the rear or southern line of their lots, and this was projected across the southern terminus of the alley space, which was then entirely obstructed at both ends.

The appellants have sought in this suit to prevent the completion of the obstructions and to compel their removal. It appears without dispute from the record that the alley extending from Monroe street on the east to the western end of the original Ulman land is too narrow to admit of the turning of teams, and that the outlet provided to Herbert street on the north is therefore essential to the use of the alley for its intended purpose as a means of access to the rear of the appellants’ premises for garbage carts, delivery wagons and other vehicles. The bill of complaint accordingly charges that the structures in course of erection by the defendants have destroyed the easement to which the plaintiffs claim to be entitled under the grants referred to as appurtenant to their respective premises. The answer of the defendants neither admits nor denies the allegations of the bill as to the derivation of the plaintiffs’ title.

It denies, however, the plaintiffs’ right to the use of the ground in controversy for the purpose of an alley, and asserts that no alley has ever been opened or constructed through the property upon which the buildings of the defendants were being erected, and that their land was not subject to any lights of way. There was some conflict in the evidence as to the extent to which the area provided in the Elman deed for the alley extending to Herbert street had been used for that purpose. It was testified by several witnesses that this space though not graded or paved has been regularly traveled, by teams making deliveries and collecting material at the rear of the lots binding on the alley with which the one in controversy connected. There was other testimony to the effect that a part of the space intended for the alley had been ²⁷² stone, and that it had never in fact been opened or used as a way.

But it was shown, by the witnesses for the defence that prior to the erection of the defendant’s row of houses the whole of the ground lying between the southern tier of lots and Herbert street was vacant and unenclosed, and that this open space was customarily used by teams having occasion to visit the rear of the plaintiff’s premises and the other lots fronting on North avenue. It was disclosed by the evidence that the grade of the lots abutting on Herbert street, before the improvements by the defendants, was from one to five feet higher than that of the street. There appears to have been some excavation and grading in connection with the alley parallel with Herbert street, but there was no work of this kind ever done upon the bed of the alley now in dispute. The main theory of the defendants is that the right of those deriving title from Ulman to the use of the last-mentioned alley depended upon its being “Laid out,” in the sense of being constructed and opened as an alley, by the original grantor of the easement.

It is contended that the language: “Together with the use of an alley ten foot wide to be laid out by Alfred J. Ulman,” amounted to nothing more than a personal covenant, binding the grantor alone, to establish a way appurtenant to the land conveyed, and that this obligation, not having been performed by the grantor during his ownership of what was proposed to be the servient estate, is not now enforceable against the present owners of the property. This contention does not give due consideration to the important fact that the Ulman deed expressly grants the use of the way as appurtenant to the land since acquired by the plaintiffs. If the phrase “to be laid out,” upon which the defendants rely, is to be construed as a covenant to make the defined area serviceable as a thoroughfare, and if the contractual duty was not actually performed, such a default could not impair the efficacy of the formal grant of the use of the ground for the purpose indicated. An “alley” is simply a narrow pas ²⁷³ sageway. 1 Words and Phrases, 342.

It may exist without any work of construction being done upon its bed; and an easement, in an “alley ten feet wide” may undoubtedly be granted and be operative even though it be described as extending over ground not previously used for that purpose. It, is perfectly apparent that the right thus conveyed in this (ease was one of great convenience and value to the property to which it was attached, and that it was absolutely necessary to be secured in order that the alley first mentioned in the grant should be available at all for its intended uses. It would not be a reasonable construction of the terms of the conveyance to hold that the distinct grant of the easement could be defeated by the neglect of the grantor to prepare the alley way for travel in accordance with his agreement. • It is doubtless proper to eonclüde that the words “to be laid out by Alfred J. Elman” as used in his deed imposed upon him some duty in reference to the improvement of the alley. The term “lay out” as ordinarily employed in such connections has been judicially defined to mean the adoption of outlines or location and not the work of construction or improvement. 5 Words and Phases, 4037; Hough v. City of Bridgeport, 57 Conn. 290 ; Foster v. Boston Park Commissioners, 133 Mass. 321 ; Gaines v. Hudson Co. Ave.

Commissioners, 37 N. J. Law, 14; Zinc Co. v. City of La Falle, 117 Ill. 417 . In the present case the deed itself “laid out” the alley, within the meaning just stated, by clearly defining its location, and hence it is probable that there was something further contemplated to be done by the grantor in this regard for the benefit of the grantee and his assigns. But to hold that the easement must be lost altogether merely because some act was not performed that was designed to make' it more serviceable would be contrary to the plain import of the conveyance and would be manifestly unjust. Epon the appellee’s theory, if Elman had died shortly after his grant, as he did seven years later, without having “laid out” the alley,' it would have become thereby at once and ²⁷⁴ perpetually barred to the grantee regardless of the valuable consideration he had paid for its use.

If the grantee had himself