Schreck v. Blun , 131 Ga. 489 ( 1908 )

Evans, P. J.

(After stating the facts.)

It will not be seriously disputed that a person conveying premises by description in terms bounding them by a street of a specified width, the title to which he also owns, ordinarily gives his grantee the right to insist upon-the existence and enjoyment of such street. So where an owner of land had it surveyed and laid off into lots,- caused a plat .of the same to be made which referred to a designated strip of land as a street, and sold the land with reference to such plat, a right of way over the strip of land designated in the plat as a street passes to every purchaser at that sale, and the seller of the lots is estopped either from closing up the strip, or maintaining an obstruction in it existing at the time of the sale. Ford v. Harris, 95 Ga. 97 (22 S. E. 144). In that case it was clearly recognized that the right of the purchasers of lots abutting on a right of way over the street as delineated on the plan was not dependent on whether there was either an express or implied dedication of the street to the public. If it be a street laid out by the grantor over land which he sells in lots, there is necessarily an implied covenant that he will open it at least for the use of his grantees. And if a grantor sells a lot of land, and in his deed bounds it upon a private way over his land, he will be estopped by his deed from denying the existence of the way for its entire length as clearly indicated and prescribed. Tobey v. City of Taunton, 119 Mass. 404; Kenyon v. Hookway, 17 Misc. 452 (41 N. Y. Supp. 230). Some of the considerations inducing the purchase may have been the probability of having neighbors, particular uses to which the purchased premises might be put because of the street, and the prospect of an advance in value from buildings to be erected on other lots. The purchaser has a right to rely upon the plan which the grantor promulgated, and on which he acted. The same rule of estoppel applies to a deed where the street is not expressly defined, but shown upon a plat therein re-' ferred to. In such a case all the particulars upon the plat are to be regarded as if expressly recited in the deed. Derby v. Allen, 40 Conn. 410; Fox v. Union Sugar Refining Co., 109 Mass. 292. In the cases cited the land was located in a municipality, but the location of the land, whether inside or outside a town or city, does not affect the principle of estoppel, or its application.

It is argued that the Gwinnett street extension as delineated on the map is but a cul de sac; and that as the court adjudged the plaintiff was entitled to a way of access from Gwinnett street, by a projection of it along the width of his property, he has been accorded all that he could property contend for under his deed. It is immaterial that the western end of the street as delineated does not connect with another way. The purchaser had the right to rely on the representation of the grantor, as contained in the plat: that the grantor had defined a specific part of his land as a street for the use of himself and his grantees. The right of the purchaser to have the way kept open for his use is not limited to the extent of the land conveyed to him. Eogers v. Parker, 9 Gray, 445. Nor do we think that the plaintiff’s right to have the entire way open is affected by the physical condition of the right of way at the time he purchased. In view of the fact that the defendant, at the time of the grant to the plaintiff, possessed and owned the whole premises, including the street, there was nothing in the appearance of things upon the premises at all inconsistent with the terms of the deed granting a right of way over Gwinnett street extension, as described in the deed. Ford v. Harris, supra.

We have reached the conclusion that the court erred in limiting the plaintiff’s right to use Gwinnett street extension-to the extent stated in his order; and the judgment is reversed because, under the facts appearing on the hearing, the defendants should 'have been temporarily enjoined from obstructing any part of Gwinnett street extension as delineated in the deed and plat.

Judgment reversed.

All the Justices concur.