Ross v. McGee

Fowler, J., delivered the opinion of the Court. This is an action brought by the appellee in the Superior Court of Baltimore City against the appellant to recover damages caused by the obstruction of a right of way claimed by the former over the land of the latter to a spring situated on a lot of ground owned by one Wheeler. The narr. contains two counts. The first claims a right of way under a deed from the plaintiff’s grantor, and the second is based upon the deed and adverse continuous user.

At the trial below but one exception was taken by the defendant and that relates to the action of the Court in ruling upon the prayers. The verdict of the jury was in favor of the plaintiff and the defendant has appealed. It appears from the evidence—consisting of the various deeds showing the claim of title of the plaintiff and defendant—that in 1867 Mrs. Ellen M. Smith owned a piece of ground now in Baltimore City bounded on the east by the Falls road, on the south by Union avenue, on the west by a twenty-foot alley and on the north by abutting property, as ³⁹³ will appear by the plat which will be included in the report of this case. From time to time she sold various lots which will be found designated on the plat mentioned.

Thus in 1869 she sold and conveyed to Benjamin W. Cox three lots fronting on the Falls road and running westerly to the twenty-foot alley shown on the plat. January 31st, 1870, she conveyed to Elizabeth A. Henderson a lot fronting on Union avenue binding on said alley and running north of even width to the southern boundary of the southernmost of the Cox lots heretofore mentioned. On 4th May, 1872, she conveyed to James H. Wheeler a lot immediately south of the most southern of the Cox lots fronting 25 feet 9 inches on the Falls road and running west of even width 150 feet to the east line of the Henderson lot. In this deed which, as we have seen, is dated 4th May, 1872, the grantor, Mrs. Smith, inserted the following reservation : “Reserving however, the privilege of using the water from the spring on the lot of ground hereby conveyed.” In the deed from Mrs. Smith to the plaintiff dated 18th August, 1874, the right to use the spring is thus provided for; “with the privilege of the use of a spring of water,” &c., as in the Wheeler deed.

And finally in her deed to the defendant dated 5th August, 1885, we find a similar reservation. The location of the spring, and of the right of way claimed by the plaintiff over the defendant’s lot are shown on the plat. ^{392 393} The claim of the right of way to the spring in question is based upon two grounds, first, that which is relied on in the first count of the narr. namely, the deed to the plaintiff from Ellen M. Smith, the former owner of the whole piece of land of which all the lots before mentioned are parts, and secondly, this deed in connection with adverse and continuous user of the way for more than twenty years. The deed from Ellen M. Smith to the plaintiff conveying the alleged dominant lot contains as we have seen the provision, which the plaintiff relies on to support her contention. The question presented, therefore, is simply this, what is the effect of the reservation contained in the deed from Ellen M. Smith to Wheeler, for, unless, that, gave to the grantor, ³⁹⁴ Mrs. Smith, something more than a mere personal right to use the spring during her life, the attempt to assign it to the plaintiff must necessarily prove abortive.

In the first place it will be observed that the reservation in the Wheeler deed contains no words of limitation, such as “heirs” or “assigns,” and that no right of way is laid out or designated by which the grantor was to have access to the spring. Unless, therefore, there is something in the language itself which by the settled rules of construction would compel us to place this burden on the defendant’s lot, we ought not to do so. It is provided by sec. 11 of Art. 21 of the Code, that “no words of inheritance shall be necessary to create an estate in fee-simple, but every conveyance, of real estate shall be construed to pass a fee-simple estate, unless a contrary intention shall appear by express terms or be necessarily implied fherein. ” We think it clear that this section was never intended to apply.to reservations of privileges and the granting of an easement such as is claimed here. Indeed the language used would seem to render it obvious that such an application would be erroneous.

When one who owns land in fee sells and conveys it and receives the price he demands for it óur law justly declares that whether or not his deed contains the magic words “heirs and assigns,” a fee shall pass to the purchaser ; but there is no rule of law, nor does justice require that if an owner of fee-simple property sells and conveys it in fee, reserving a privilege which imposes a serious burden upon the property sold, that we should declare that not only the grantor, but his heirs and assigns forever should enjoy the privilege reserved, unless there is something in the language of the deed which would authorize such a construction. Thus in the case of Summers v. Beeler, 90 Md. 476 , Pearce, J., delivering the opinion, we said that it was settled “that a grantor may impose restrictions in the nature of a servitude or easement upon the land he sells * * * for the benefit of the land that he still retains; and if that servitude is imposed upon the heirs and assigns of the grantee in favor of the ³⁹⁵ heirs and assigns of the grantor it