Aspinwall v. Enterprise Development Co. , 165 Ga. 83 ( 1927 )

Atkinson, J.

1. If an owner of a tract of land divides it into lots, streets, and alleys, records a plat thereof, and conveys lots by reference to the plat which abuts a particular alley, the grantee in virtue of the grant will acquire a private easement in the alley as appurtenant to the land for the purpose of affording ingress and egress to and from the lots. Bayard v. Hargrove, 45 Ga. 342; Ford v. Harris, 95 Ga. 97 (22 S. E. 144); Murphy v. Harker, 115 Ga. 77 (41 S. E. 585); Hamil v. Pone, 160 Ga. 774 (129 S. E. 94). The principle applies whether the alley extends from one street to another or is a cul de sac extending only from one street to a terminus at the line of a given lot in the subdivision. Schreck v. Blun, 131 Ga. 489 (62 S. E. 705); Ashford v. Walters, 160 Ga. 350 (127 S. E. 758).

2. The property right to an easement of the character mentioned in the foregoing note may be protected by injunction as against another person who without consent of the owner attempts to close the alley. Schreck v. Blun, supra.

(а) This applies although the obstruction begins at the line of the owner next to the blind end of the alley, and the person attempting to close the alley owns all the lots on both sides of the alley towards the blind end and holds a junior separate deed from the proprietor of the subdivision to that portion of the alley, and the deed was executed at a time when the proprietor still owned the lot abutting the blind end of the alley and expressed the assent of the grantor to such obstruction.

(b) The fact that the owner of the easement did not actually use the alley but used a driveway from the front of his lot would not defeat his right to an injunction to prevent closing the alley.

3. Where the plat of the subdivision shows a building line on the lots 32 feet back from the street on which the lots front and an apartment house is commenced and partly completed at large expense before it is discovered by an adjoining proprietor that one corner of the building extends 4-1/2 inches beyond the building line, equity will not enjoin the further completion of the building at the suit of the adjoining proprietor on the ground that the building was an encroachment over the building line. The court did not err in refusing an injunction against encroachment upon the building line. 32 C. J. 215, § 334. Atkinson and Hines, JJ., dissent from the above ruling, because the uncontradicted evidence shows that the defendants through gross negligence, or deliberately, constructed the building so as to encroach over the building line.

4. The facts of this case do not show such laches upon the part of the plaintiff as would bar his right to an injunction to prevent closing the alley. The suit to enjoin the obstruction having been filed before the alley was obstructed, the continuance of the work by the defendants with full knowledge of the existence of the alley was at their peril, and the fact that a wall was constructed across the alley before the interlocutory hearing would not be ground for refusal of the injunction. Russell, C. J., and Gilbert, J., dissent from the ruling in this note.

No. 5608. September 29, 1927.

5. The court erred in refusing to enjoin obstruction of the alley. Russell, C. J., and Gilbert, J., dissent.

Judgment reversed.

All the Justices concur, except as above stated, and except Hill, J., absent. Gillon & Tomlinson, for plaintiff. W. O. Wilson, for defendants.