Teasley v. Stanton , 136 Ala. 641 ( 1902 )

HARALSON, J.

On the trial of this case in the court below, it was adjudged and decreed, that as to the defendants, Burch, the case be dismissed as prayed by them in their answer. It Avas further adjudged and decreed, that the defendant, Isaac S. Stanton, had no right, title or interest in or to a right of way oyer the property described in complainant’s bill.

The opinion of the learned chancellor found in the record, is as folloAVS: “The question raised by the claim of Stanton is different from that raised by the claim of Burch. They are both claiming a private way over the same property and by virtue of deeds of the same import from the same original source of title. But there is a difference nevertheless.

“The defendant Stanton claims a right of wav under the deed of May 21st, 1867, and not otherwise. This deed describes the lot as fronting on the ‘reserve.’ But the more particular description by courses and distances, AA'hen read in connection with the agreed statement of facts, shows that the lot conveyed is distant 105 feet from the reserve and canhot front upon it. This description of the lot as fronting on the reserve, is false. Being palpably false, I think no implied covenant can arise out of it.

“But there is no such difficulty in the claim of Burch. In the deed from Wilson to Burch the lot conveyed is described as fronting on ‘the continuation of a strip of ground 60 feet by 330 feet intended and reserved for the continuation of South street.’ A boundary on ‘an intended street’ grants an appurtenant private right of way. O’Linda v. Lathrop, 21 Pick. 292; Smith v. Lock, 18 Mich. 56; Jones on Easements, §§ 227, 228.

“ ‘When a grantor conveys land, boundihg it on a way or street, be and bis heirs are estopped to deny that there is such a street or way. This is not descriptive merely, but au implied covenant of the existence of the way/ and ‘the description of the way, in the deed, as a contemplated passage way, shows the agreement of the Parties that there should be such a passage way, as distinctly as if it had been already laid out; and has the like effect.’ — Tufts v. City of Charlestown, 2 Gray, 272; Stetson v. Dow, 16 Gray, 372; Franklin Ins. Co. v. Cousens, 127 Mass. 258; Burrell v. Burrell, 11 Mass. 296.

“As I understand Steele v. Sullivan, 70 Ala. 589; Hoole v. Att'y. Gen’l., 22 Ala. 197, and the other cases cited by complainant, they only assert that the description of land as bounded by a road is not, alone, evidence of a dedication to the public.

“I think Burch has a private way over the property in question, but that Stanton, in the present condition of his deed, has none.”

The case has been here carefully examined on the pleadings and proofs, and argument of counsel, and we approve the finding and decree of the lower court. - This opinion of the court seems to us to be a correct exposition of the law of the case, and we approve and adopt the same.

Affirmed.