49 F. 896 -

896

J'E'DERAL REPORTEB,vol.

'49.

tiffhu precluded from equitable relief. Kerr, 30l. nhe meant to rescind or reform the settlement upon the ground of fraud he wasoound to I1nd his delayot nearly three years was 'fatal.'Gf'ymes v;8anders, 93 U.S. v. MUlilcwn, 185 U. S. '804, 10 Sup. Ct. Rep. 823. It has been repeatedly declared that there must be conscience, good faith, and reasonable diligence to call into action the powers ora court of McKnight v. Tay!()T', 1 How. 161; Creath's Adm.'r v. $:ffI.8, 5 How. 192. But these things are lacking in ,the plaintiff's case. It follows. then, from what has been said, thttt,so far as concerns the main issue;-the one we have discussed,-the bill of complaint niust be dismissed, with costs to the defendants. The articles 'of dissolution provide that the defendants shall collectthe scheduled excepted out of the contract of sale, and from time time,on request, account tothe plaintiff for his share; and the bill charges failure and refusal by the defendants to do so. The answer denies thi!! allegation, but admits that there is a balance of $699.30 in their hands belonging to.the plaintiff, which they are ready to pay ov:er to him. This part of the case rests upon tlle bill and answer.. W!!J have had some doubt whether we should dismiss the whole bill without prejudice to the. plaintiff's right to sue at law for the amount coming to him out of tHese claims, or retain the bill with .8 view to 8 decree that shall cover every matter in dispute. But we hitVe at length concluded to pursue the latter course. Perhaps the parties can agree upon the balance due to the plaintiff from these collections. But if they cannot dl,l so, we will appoint a master to the amount, raserving the question of the costs of the reference until the coming in of his report.· .

WALES. District JUdge,ooncuriJ.

BARBOUR '0. LYDDY.

(OfnmCt'CotCf't, D. New .Ttrsey. :Maroh §.1891.)
lhBBMSNU-CB.lII,A.TION Bl' DSRD-BoUNDING BY "STRUDT.-

A person owning a farm bordering on the sea, and interBlloted by a road running parallel.with'the shore, divided the same itlto lots running back from the sea to and beyond thll road, audJlrepared a map thereof, upon w/l.ieb lot 18 was marked as a street. Soon afterwards /I.e conveyed a, lot adjoining .t/l.ereto. describing lot 18 a8a "street 50 feet wide, to be kept open and used as a street for the benefit of tbose purohasing lots. " Held, that there immediately passed to the grantee, as appurteliant to bislot, a right of aocess to lot 18, and of passage to and fro over its whole length and breadth, togetber with an easement of light, ail', and prospect, and that no person 8uj)sequently title from the grantor /l.ad a rig/l.t to erect;. bath/l.ouse upon .said lot above the line of /l.igb water.

In Equity. .Suit by; S. Rebecca Barbour against Mary A. Lyddy to enjoin illterference with an easement. Granted.

BARBom

897

Applegate

Babbitt

Hr.rpe, for complainant. Lawrence and J. D. Bodle, for defendant.

GREEN, J. In 1864, Benjamin Wooley was seised in fee of a certain fann lying hnmediately south of Long Branch, in Monmouth county, in this state, which on the easterly side bounded upon the Atlantic ocean, and was intersected longitudinally by a public road or street running parallel with, and about six or seven hundred feet westerly from, the Wisely foreseeing that this farm was so situated that it would be in demand for villa and cottage sites,Mr. Wooley had the whole of it laid out into lots 100 feet in width, extending upon the east· erly side ofOcean avenue (then generally called" Seabrook Avenue") from the avenue to high"water mark at the ocean, and upon the westerly side extending from the avenue to lands belonging to J. W.Wallack. These lots were duly numbered and .plotted upon a map, which, however, was not made a matter of record. Upon this map lot No. 18 was laid out as a street 50 feet in width, extending from Seabrook (Ocean) nue to the sea. It was called "Adams Avenue." In October, 1864, Wooley and wife, by their indenture, dtilyexecuted and acknowledged, granted, bargained, sold, aliened, released, conveyed, and confirmed to Edward Ada,ms, in fee-simple, a parcel of land, so plotted as stated, and described as follows: "All that lot or parcel of land situate, lying, and being in Deal, near Long Branch, on the east side of Seabrook avenue, leading from Benjamin Wooley's house to Green pond, and gins in the south-west corner of the lot hereby conveyed, in corner of a street fifty feet wide, to be kept open and used only as a street for the benefit of those purchasing lots, and is called 'Adams Avenue;' which Said south-west comer is fifty feet distant, on the east side of Seabrook avenue, northerly from the north-west corner of a lot now belonging to Annie D. Wallack, formerly the Wadsworth lot;" and thence the description proceeds, by metes and bounds and courses, to describe the lot conveyed, which was 100 feet in width, and extended from Ocean avenue easterly to high-water mark at the sea, by and between the street named "Adams Avenue "on the south, and other lands the said Wooley on the north. By various mesne conveyances, the easterly half of this lot has been conveyed to, and is now owned by and in the possession · of, the complitinant. Soon after the conveyance made by Wooley to Adams, Wooley died, having first made, in due form- of law, his last will and testament, wherein, among other things, he directed his executors to make sale of certain of his real estate of which he died seised; and the said executors did thereafter, after probate of said will and in execution of this power, make sale and conveyance of certain real estate, which belonPied to their testator, to one L. B. Brown. In the lands so sold and conveyed was included the lot known as" Lot No. 18," 50 feet in width, extending from Seabrook avenue to the ocean, and which was, in fact, the street or pMsage-way orroadreferred to in the deed from Wooley to Adams, and called in that deed "Adams Avenue." The deed of the executors w8sin the

of

v.49F.no.1l-57

usual form, without covenants, an<t .iCOP"eyed rip;ht, title, had in 'the lands, which was the subject of the conveyance, at the time of his death. Immedi. .the;m\liking,of,tl:)j,s aopveyance, BrQwnrclJ,used" to be prepared the of the clerk map showi:pg him by the,eiecutors of Wooley, .op. which 'Pl41P the lot called "Adams,Street" is marked "Lot title tQ' her1otfl,.which, are designi:\ted map as a.nd 12, thrQugh v'llrions: t)lesne conveyances fromJ}r.own·. ln,the de,edl3by which the.severaJ wereresPectiV;eJyI.tUlldefrom Brown to his immediate and from these their grantee.s\ on tl;P.til thedetlds ,of conveyance to the defeJ),dant, 4fethese ;worqs, following immediately after the descriptioupf C<)niI76y·eQ: righliot way to the Atlantlc 1>Clean from said Seabrook lot·llftyfeet'wide. laid dOWD 'on 'said [Brown] map as tQ erect a b1\th·hQuse noti exceeding eight feet by No.l.lf. ,fert\lPPIl In front of saidJifty feet. but not upon theblqtl or and the to batlJe in said ocean ip front of said lot II:! ;'s:aid right of w.ay. rightOf building. and right Qfbathing to be appurtenanttothe"lGtbf'land hereby, conveyed. and to be cODveyed herewith. by the party of tIle &ecilM part. his heirs and assigns, and Dot otherwise." :13y .virtQl:l this . Qt)fendant has above high-water n:mrk within the limits of Ada;l!nsavenue, a building userl',as aba,tpllnd $ummer-house combined, which rises somedistaoce abave,tbe tqp qq)ie bluff,and is somewhat larger than the dimensions in the This erection the com plainant siat Which the delEmdanthas limit/3 ,of,Adams avenue, in derogation of her rights, and whichit.\hllriously her property, aud the easements appurte;nant thereto,4no,. the ohjeQtof her bill of complaint is to effect tbe reI mova,l9f SUQP, Q\lilding from. its .pl'esent locatioD;and enjoin its further maintenance IQf:JtS re-erection within any part of: Adams avenue. The then.:is, what right did the complainant acquire ;with respecttDA-damsaYenue by tbeconveyance .from Wooley to her grantor? and, the defen:<iant acquired any rights; superior to those of the complainant by the conveyance to her from Brown? Wooley, at the daJe of his to Adams, (through whom ,the complainant claims was in fee.of all the lands in qU6lltion. It cannot be q.ispnted that IlliD owner ofland may make such :dieposition of it,or imsuchsEU.;vitudes it, ,as he may deem mQstbeneficial to his own ;jnterest. f'Hemay found thereon a,city or a village, .qr at his own free will. and he may: adopt jpst such.1nel1fi\ureScPllcernjtli ,his land, nQt inconsistent with the laws Qf .1and"a,stQ hisQest judgment. may seem expedient. II Tbus, a }and-()wner,may iJ;l1preas upon his private property, by private contract, ;rights in the seufileof the word. but enjoyable by others, analogous, fOJ; inslance,to"theordinary public rights.of highway, and yet

BARBOuR". LYDDY.

confine these rights to theo\tners: aIid veS 'o{'the land ing the subject of the contract j and! not onlY' may he impress upon his land such conditions and 'restrictions, but,stthe saine tiine, he may invest the purchaser of a parcel of those lands with rights in, his remaining lanos of which cannot beaftehvards divested:, except by his own ofit, showing consent. Thus, where the owner of land makes a streets upon it,andsells and conveys lots ab'utting upon, and calling for such streets,. but$uch streets wereneverused'oracceptedhy the public, the purchas(lrs 'of lots nevel'thelessacquire the Same rights in the streets so called for, as against the original owner,and as against other chasers,8S they would if the streets were in -fact public ,streets. . In the case at bar it appears that the original owner 'of the land . caused to be made a. plan or map of his farm, divided into lots, of about a hundred feet in width, and upon tbiit plan marked down lot No. 18al\ a street 50 feet wide. The first conveyance of land, after the plotting of them by Wooley, was to Adams, as has been stated; and in the deed of conveyance to Adams the grantor recogriized this street so laid dowrl upon his map, and declared that it was to be forever a street 50 feet wide, to he kept open and used only as a street for thebeilefit of those purchasing lots from him. Until there was some acceptance by the public of this street, it did not take to itself the character of a public highway; it remained limited in its use to those who were to become thereaftE.>r purchasers of Wooley's lots. Nevertheless he who first purchased a lot from Wooley, as well as the last purchaser, acquired by conveyance certain rights in and in reference to the street called for by sueh deed and map, which.immediately became aPlJurtenant to the lots so conveyed, and are entirely distinct from,and are in addition to, the right of the grantee, as a part of the public, to use the street, after' it shall have been opened for use, and accepted by the public as a publio highway. It nowhere appears that this street, Adams' avenue, has ever been aocepted by the, public, and it is not a highway in that sense. Nevertheless the right which Adams acquired by the. conveyance to him of the lot bounded upon this private way or street is co-extensive with the right that he would have had if the street had been before then formally dedicated and accepted as a publichighwayj or, if that proposition be too strongly stated,atany rate the right which he did acquire was that the private way should be preserved in all respects as if it were a public street. From w,hich it follows that the rights which are bom of .such conveyance, and are appurtenant to a lot conveyed under these circumstances, are-JilirBt. a of access from the abutting property, and a. passage. to and fro over the street in its whole length and breadth j and, secondly, the right of light, air, prospect, and ventilation. This <loctrine was clearly laid down in the case of Barnett v. Johnson, 15 J. Eq. 481, and Stmy v. Railroad Co., 90 N. Y. 122, in which last the court say that an owner whose land abuts upon aihighway necessarily enjoys certain trom the existence of an open street adjoining his property which belongs to him by reason of its location, and are

900

FEDERAL.R:EPORTER.

vol. 49.

not enjoyed by the general publiQ, ;such as the right offree access to his premises, and the free admissiopand circulation of light and air to and his property. The is stated in Washburn on . " ' 4pplying tbis prin!liple to the by Wooley to Adams, it .is that grantor impressed upon the land known as serv:itude in.fa,vor oUhe abutting land conveyed to virtue,of that conveyance.. and by operation of law, certam. I;luch Ill! have ,been mentioned, ,became appurtenant to thelo(w4ich was so conyeyed., When the executors of Wooley conveyed to Brown, they conveyed onlysllch right, title, estate, and interest in the,)apdas Wooleybad at the time of his death.. In conveying, theref,ore',: to.,,Brown :i.qt N9. 18, :whicqis Adams' avenue, that lot was connecesearily to of all the easements which had l>ecoQle appurtenant to the lot conveyed by Wooley to Adams, and created bY:lluqh conveyance. By that conveyance to Adams, 'Wooley had himself of the power tq make a conveyance in fee-simple, free of these easeIIlents, and without condition or restriction, of lot No.·18, Which,. upon his map, he had plotted as Adams' avenue" and, of course, his executors ,could convey no greater estate than he himself could, nor in any less restrioted manner. As between Wooley anttA,qam.s, and their respective heirs and assigns, it WaS fixed by that easefirst. conveyance that the Adams' lot should have, mentS, ;fight Qf air, ventilatioIl,prospeet, access, and a right of way froD;l, avenue to the sell. over .the full length and breadth of Adams' avenue, as laid. out, 50 feet in width. Whatever conveyance, therefore, was maCi1.-e. thereafter by the executors of Wooley was made necessarily s\}bje9ttothese limitations and ,restrictions'. Norconld Brown, in his subsequent conveyances, grant to· those who purchased lots from him any pO,vUegeor right or easement inconsistent with the full, complete, and thorough enjoyment ·of the.easementswhich;byhis grantor's own act,hlldbe<lome appurtenant to the Adams lot. So far as the grant of lJ,ccesstothe ocean from Ocean avenue over Adams avenue to the purchallerpf,theJots, originally Wooley's and then Brown's, is concerned, Brownllad a perfect right to make it; but when he went further in his grant"llndautborized his grantee to erect bathing-houses, nO matter how smalI,:iallywhere within the limits of Adams avenue, he attempted to grant whaHre.didnot possess,and to do that which he had no power to do. WOQley:h/;ld devoted Adams avenue to a special use, namely, acCess to the sea.. Brown accepted the conveyance of Adams avenue. with that USElimPl't*lsed upon it. The only right in Adams avenue which Brown then9Quld grant was a right of passage. That was all that he of Wooley. and all that he could convey to others. had, .as the It that when, in his deed of conveyance for lots formerlY'R Pf»'t Wooley 'estate,he sought· toenlarge'.his own rights,' and to· invest MB .grantees with .such enlarged rights by granting to them the power of erecting. within the limits of Adams avenue"

BARBOUR 11. LYDDY.

901

which would necessarily interfere with the enjoyment of the easements already appurtenant to the Adams lot, he did' that which was entirely ability hence wholly ineffectual. beyond his It was claimed on the part of the defendants that the right of access to the shore over Adams avenue should be construed to mean the right of bathing in r.heocean. not necessary to determine whether this is II. fair and allowable construction of the words used by Wooley in the opening of .Adams avenue to the use of his. grantee. It is very,'pJain that, admitting that access"to the ocean over Adams avenue was f01'l the purpose of bathib,g, it does not follow that those who lawfully use Adjlms the ocean for that purpose, had a ,right to erect within its limitsbathing-bouses which would effectually interfere with, if they did not destroy it as a way. It seems very clear; therefore, that the allegeq,grallt from Brown to the 4efendant of a right 'to erect bathinghouses within the limits of Adams avenne cannot justify her in such erection; .it was an effort on the part of Brown to convey a right of which he himself was not possessed. The defendant's deed, therefore, does not in any way afford justification for her actions in this matter... : It is very apparent from the testimony, I think, that the bath-house which has been erected by the defendant encroaches very seriously upon the, limits of Adams avenue. That avenue extends, beyond all question, to mark at the ocean; arid it is admitted that the bath-house of the defendant, which is a large structure 25 feet long and 13! feet wide, and rising 14 feet above the level of the top of the bluff, is mainly situated within the limits of the avenue above high-water mark. It has been placed there in derogation of the rights of the complainant, who is entitled, as grantee of Adams, to aU the easements appurtenant to the Adams lot, and to all the rights in, over, and upon Adams avenue, as granted by Wooley to Adams. The structure of the defendant necessa. rily seriously interfetes with the full enjoyment of all these easelnents. It is wholly unautll'0rited;' it is an obstruction to the free passage over Adams avenue; and; as the proofs show, ill plainly an injury, it'repa:rabIe, if the structure is permitted to stand, to the lands of the ant. The practical effect of the action of the defendant in erecting it is to cause. the resulting limitatio.n of way, of prospect. of enjoyment, to become quasi appurtena.nt to the complainant's land, to the serious interferencewith, if not the certain' extinguishment of, those very easements which should be :and are in law rightfully appurtenant thereto; The case, Rsstated by the complainant in her bill, has been satisfactorily made out, alid she is entitled to a decree as prayed for, with costs.

,

, , " ,·· ;,

,j ,

-

-

)')

i " :

W'OODINq.:1

."' "\' lj)

,.' fi

.

,i",

',:' ;

"!:'

':,

-

, _ .. !

lV.' , i ; : ' : ' , :

.'

8O,18t'J.)

j :. -; -', '

sl"BOtPlO iPBUOBIIAJ(lll-FUtJD-,EQ"D'IT.(JlLB RBLIEJ'..

a bal,f inter6$t.ln cerlaln land, the other half belonlting to his ·'ch1tdrep-aa bef.l'8· to the community intel-est· of his deceased wife under the com. munn.y. law of Waahington;'" Having ·tIlallried·again,plaioti:ffoontracted to .sellthe · Wbql8,traet for $fl,OQQ. WUhQutdillclosing his, s, or the interest of 'cllHdren; 'the' putch'aser being ignorant of both; 'Plaintiff in· fO!1lled the purchaser that h& W8S unable to. because the land w84 Volldl1.is .lYife refused. share wit!Iout an inOrl'll.lled compensation; , An j\greement was then made'oetween the three that the hU'lblllld should d9nvey. hillintereatfor and the Wife hers for a large sum in add,{tion. Plaintitt dee4 'ilildreceived payment, .but the purchaser 1"8perform his agreement with the wife on tbe ground that she had no title. Be had. in fact learned' the true state of.affairs before: maklUg the: agreement,' and intended to carr, out to her.. He.ld that" as had received gool'l 'title.to a half intElreit fora proportl'Onate (If the orlgmw price, and as ali parties of deceit, equity would afford relief to none. '.

Suit :Blackburn and Sadie M. Blackburn T. Woodiug. De!(ree dismissing the bill.. GalW'/ta Pars01l8. for . O. and B.F.:Dennistm, for defendant.
','"i r

Pistrict Judge. The material faCjlts to be considered in renderipg a decision inthiscase:l,ue as follows:'fhe complainant Barbee T·. 13laakbllrncontracted with the.dt'lendant to sell and convey to him for the price of $6,OUO certain lands situated in Cheha,lis county, in this state. t1)etiUe towhicQ, as shown by the public records, was at the time in.said,cowplainaut; the same having been by him in the year 1882 the United Stawa. At the time of the purchase said complainant was the husband of M. W. Blackburn, who died after the of the patents for the entitled to inherit ,per portion of property ot berselfand husband, situated in. this state. .After tile death of hit:lfirst wife said com plainant was to his co-plaintiff, Sadie M. Bla.ckburn,and the marriage relation, between theIQ existed at the. time of the, making of said con· tract. When the contract made the defendant was not personally acquainted with ·. and did not know of the existenctl of any marriage ;relation affecting the title of Barbee T. Blackhurn to said land, or orany interest in /:laid property in the winor heirs of said deceased wife. After the makin,g of said. pon.tract, Barbee:T., through an represented,· to thede(enuant tPl1t hewasunal>le t() p.erform his contract Jully, for the reason that the property was community prop. erty, and that his wife, Sadie M. Blackburn, had not consented to the contract, and that she refused to execute a conveyance of the land with. out the p.ayment of a larger sum therefor than the price fixed by said contract. He then offered to convey all his interest in the property for one-half of said price. Thereupon, through negotiations conducted on hehalf of Barbee T. Blackburn by his said a.gent, and in behalf of his wife, Sadie M. Blackburn, throughanothtJr person, acting as her agent,
1LuI:&,'QJ;lD,

i,

:"1,.

.