*1. Where the owner of land makes a map of it, showing a street upon it, and sells lots abutting upon and calling for such street,

but the same is never used or accepted by the public, the purchasers, nevertheless, acquire the same rights in the street so called for as against the original owner and each other as they would if it were in fact a public street.

2. The rights so acquired are private rights annexed as appurtenant to the lots so

conveyed, and are distinct from and in addition to the rights of the owners as citizens to use the street after it shall be, if ever it is, used and accepted by the public.

*Head notes by PITNEY, V. C.

NOTE.-Streets; rights of abutting lotowners.

The owners of lots abutting on a street have a peculiar and distinct interest in the easement in the street, distinguished from the right of the general public, in that it is an interest legally adhering to the contiguous grounds and the buildings thereon, by affording more convenient facilities for their use. Rensselaer v. Leopold, 3 West. Rep. 874, 106 Ind. 29.

The lotowner has a right to the use of the public road or street upon which it abuts, for the purposes of ingress and egress; and such right cannot be taken away or impaired without compensation. McQuaid v. Portland & V. R. Co. 18 Or. 237.

He cannot be deprived, without compensation, of his outlet through such street to other streets, in either direction, by stopping up the street on either side between his property and the nearest intersecting street, although the part of the street discontinued is not in front of his land. Gargan v. Louisville, N. A. & C. R. Co. (Ky.) 6 L. R. A. 340. Closing the street between his land and the nearest intersecting street, without furnishing another convenient and reasonable outlet in that direction, or making compensation for the damages, is taking private property without due compensation. Ibid.

His right cannot be taken away, even by the Legislature, without compensation; a sale cannot be made of all of it except an alley, for the benefit of the town, even if it owns the fee. Moose v. Carson, 7 L. R. A. 548, 104 N. C. 431.

The lotowner has, as appurtenant to the lot, an easement in the street to its full width in front of the lot, for admission of light and air to his lot, which easement is subordinate only to the public right in the street. Vanderburgh, J., dissents. Adams v. Chicago, B. & N. R. Co. 39 Minn. 286.

Although he does not own the fee of the street, he has an easement of light therefrom, and may recover damages from an elevated railroad com10 L. R. A.

3. The rights so acquired and annexed to the abutting lots are twofold: first, the right of access to and from and passage over the land so designated as a street; and, second, the right to light, air and prospect from and over it. These rights are distinct from each other, and the second is capable of being exercised and enjoyed by itself, and without any exercise or enjoyment of the first.

4.

5.

Mere nonuser for any length of time of an easement created by express grant will not destroy or extinguish it. In order to extinguish it by nonuser there must be some conduct on the part of the owner of the servient tenement adverse to and in defiance of the easement, and the nonuser must be the result of it, and must continue for twenty years.

The owner of a block of land made a map of it, showing an alley or street, twenty feet wide, running through it, and by deeds executed and delivered on the same day conveyed to two several grantees the lots situate on each side of the alley, and facing on one of the main

pany which interferes therewith, by the construction of its tracks or the running of its trains. Pond v. Metropolitan Elevated R. Co. 42 Hun, 567.

Where the owner of land laid out a street, the right to use it became appurtenant to the lands of the adjoiners, and anything which obstructs such right is a nuisance. Richardson v. Boston, 60 U. S. 19 How. 263, 15 L. ed. 639.

This incorporeal right appendant, the advantage of the street to the lot of the owner, and to the buildings, improvements, walks, trees, etc., as the owner may have adjusted them to the street as existing, is a valuable property right which the law recognizes. This right cannot be appropriated and taken from him, against his consent, without compensation. Indianapolis v. Croas, 7 Ind. 9; Haynes v. Thomas, 7 Ind. 38; Tate v. Ohio & M. R. Co. 7 Ind. 479; Protzman v. Indianapolis & C. R. Co. 9 Ind. 467; State v. Berdetta, 73 Ind. 185; Indianapolis v. Kingsbury, 101 Ind. 200; Crawford v. Delaware, 7 Ohio St. 459; Cincinnati & S. G. A. Street R. Co. v. Cumminsville, 14 Ohio St. 523.

If property has been adjusted to a street as laid out, so that by the proposed improvement it is rendered less easy of access, or otherwise directly injured from new arrangements and adjustments made necessary for its convenient enjoyment, these elements, differing from the damages or inconvenience which the general public experiences, should be considered in estimating the compensation to be made. Rensselaer v. Leopold, 3 West. Rep. 874, 106 Ind. 29: Protzman v. Indianapolis & C. R. Co. 9 Ind. 467; Smith v. Boston, 7 Cush. 254; Rigney v. Chicago, 102 Ill. 64.

The abutting lotowner on a public street has, independent of the fee in the street, an easement therein to its full width in front of his lot for the purposes of access, light and air, which constitutes property, and cannot be taken from him for public use without compensation. Lamm v. Chicago, St. P. M. & O. R. Co. (Minn.) ante, 268. See note to Moose v. Carson (N. C.) 7 L. R. A. 548.

streets, and in the deeds called for the alley. The grantee of one of the lots so conveyed inclosed his lot with an ordinary fence, and included in his inclosure the strip designated as an alley, and maintained the inclosure for more than twenty years, but did not place upon the part designated as an alley any structure except the fence. Held, (1) that the owner of the lot adjoining the locus of the alley on the opposite side had right of light, air and prospect from and over the locus of the alley which was not extinguished by its inclosure, for more than twenty years; and (2) that equity would, at the suit of the last-named owner, restrain the erection upon the locus of the alley of any structure which will obstruct the exercise of such right to any greater extent than did the fence so maintained for more than twenty

years.

(November 6, 1890.)

ILL to enjoin defendants from erecting a

ants' lot. Heard on bill, answer and proofs. Decree for complainants.

The facts are stated in the opinion. Messrs. T. B. Harned and Charles Van Dyke Joline for complainants.

Messrs. William H. Hess and Samuel W. Beldon for defendants.

Pitney, V. C., filed the following opinion: The complainants (mother and daughter, the latter an infant) are the owners of a house and lot situate on the south side of Chestnut Street, in the City of Camden, about forty-five feet east of Newton Avenue, and ask the court to enjoin the defendants from erecting a schoolhouse on land immediately adjoining their lot on the west. The defendants are the Board of Education of the City of Camden, and, as such, have jurisdiction over and charge of all the public school buildings and grounds in said city, and have contracted to build, and before the interposition of the court herein were about to erect, a large school building in the position mentioned, which, if erected, would almost touch the westerly line of the complainants' lot, and would be in close proximity to the dwelling standing thereon. The allegation and claim of the complainants is that the place where the building is to be erected is a public street in the City of Camden, and that they have the right to have it kept open and free from obstruction, as well for purposes of access to and from their lot, as also for light, air and ventilation. The question litigated was whether or not the place in question is at this time or ever has been a public street; or, if not a public street in fact, whether or not the complainants have not in it the same rights as if it were a public street. Both parties claim title to their several holdings under Sarah Kaighn, who became seised of an undivided interest in the entire block of land, of which the premises in question are a part, upon the death of her father, James Kaighn, some time prior to the year 1812. He seems to have died seised of a large tract of land in that neighborhood, which, shortly after his death, was laid out into streets and called "Kaighuton," and in 1812 was partitioned among his children, and in that partition the block in question, bounded north by Chestnut Street, east by Broadway, south by Kaighn's Avenue and west by Fourth Street, was allotted to Sarah

Kaighn. This block was bisected diagonally by a street called "Newton Avenue," running northeast and southwest, and it is the part east of Newton Avenue with which we have to do. This part was again, during Sarah Kaighn's Ownership, bisected by an alley or street twenty feet wide, running east and west, called "Syca more Street," now in use, and about the location of which there is no dispute. The part north of Sycamore Street was again bisected by an alley or street, twenty feet wide, running north and south, which has never been wholly opened to the public, or, if ever opened, has not been kept open and used as a street, and the true location of which was one of the matters in dispute at the hearing. The recorded deeds from Sarah Kaighn for portions of the north side of the block in question indicate and tend to prove that it was at some time laid out plotted upon it, but it was admitted at the hearing that no copy of such map could now be found. It is clear that some time prior to 1819 so much of the block in question as lies north of Sycamore Street was divided, on paper, into eight lots, seven of which had a frontage of forty feet each on Broadway, and numbered, commencing with Sycamore Street, 13, 14, 15, 16, 17, 18 and 19, which last was on the corner of Broadway and Chestnut, and the eighth, numbered 20, is the lot now owned by the defendants. The defendants produce a certified copy of the record of a deed dated May 20, 1819, made by Sarah Kaighn to John Hopple, by which she conveys to him as follows: "The four following described lots of ground, situate in the Kaighnton aforesaid, designated 'Sarah Kaighn's Square No. 7,' and marked in the plan thereof 'Nos. 13, 14, 15 and 16.' bounded southward by a twenty-feet-wide alley, westward by other ground of said Sarah Kaighn, northward by lot No. 17, and eastward by the Woodbury Road [Broadway], leading from thence to Cooper's Ferries, containing in breadth, north and south, one hundred and sixty feet, making four lots, each forty feet front on said road, and in length, east and west, one hundred and eight feet, with ingress, egress and regress to and along the said alley and all the lanes, etc., belonging to Kaighnton." It will be observed that in this deed there is no mention of a lane or alley on the west side of these four lots.

a map, with alleys in question

Under the date of the 8th of March, 1821, Sarah Kaighn made a deed to Joseph, John and John M. Kaighn, Joseph Boggs and Joseph B. Cooper, five persons, as trustees, of a portion of this block, described as follows: "All that lot of ground No. 20, situate in Kaighnton aforesaid, on subdivision of Sarah Kaighn's square No. 1, beginning at the angle of a twenty-feet-wide alley and the Cooper Creek road [now known as "Newton Avenue"]; thence by the north side of said alley [now known as "Sycamore Street"] eastward to the corner of another twenty-feet-wide alley [the alley in dispute]; thence northward by the west side of said alley to the south side of Chestnut Street [sic] till it intersects the eastward line of said road [Newton Avenue]; thence southwesterly by said road to the place of beginning." There is a plain hiatus in this description, and there should be interpolated after the words

"Chestnut Street" these words: "thence westwardly along Chestnut Street."

It will be observed that no distances are given in this description. The deed declared that the grantees should hold the premises in trust for the purposes of permitting the freeholders of the Town of Kaighnton to erect upon the lot conveyed a schoolhouse and other buildings necessary and proper for the maintenance of a school, etc., and that the building so to be erected shall be used to keep open a school forever. Upon this lot, in 1856, the school authorities erected a schoolhouse, which has been maintained ever since; and the one now proposed to be erected is located between such schoolhouse and Chestnut Street. Under the date of the 10th of March, 1821, two days after the making of the school-lot deed, Sarah Kaighn made separate deeds to her brother Joseph Kaighn for lots Nos. 18 and 19 in that subdivision, which, though dated two days later than the school-lot deed, were in fact acknowledged and delivered on the same day as that deed. The description of lot No. 19 in its deed is as follows: "Beginning at the corner of the road called 'Broadway and Chestnut Street,' in Kaighnton aforesaid; thence westward by Chestnut Street two hundred feet to a twenty-feet-wide alley; thence southward by said alley forty feet to the corner of lot No. 18; thence eastwardly by said lot two hundred feet to Broadway," etc., "marked in the plan of Sarah Kaighn's square No. 1, 'No. 19,'. with ingress, egress and regress to and along Broadway and said alley, and all the streets, lanes, alleys and passages belonging to Kaighnton aforesaid." The deed for lot No. 18 calls for the alley on the west end, and the same language is used.

The reference in these deeds to a plan containing subdivisions of Sarah Kaighn's share in her father's estate seems to establish the actual existence of the map. It will be observed that in these deeds, namely, that for the school-lot and those for lots Nos. 18 and 19, is found the first mention of the alley in question running north and south from Chestnut Street to what is now known as "Sycamore Street;" and, as no distances along the streets are given in the deed for the school lot, it seems to me that the distance of two hundred feet from Broadway along Chestnut Street, given in the deeds for lots Nos. 18 and 19, must, as between the parties to the conveyances of March, 1821, conclusively locate that alley as commencing at Chestnut Street, with its easterly side two hundred feet west of Broadway. And this was finally, in substance, conceded by the defendants at the hearing, although the laying out of the lots lying south of Nos. 18 and 19, with a depth from Broadway of only 180 feet, would seem to indicate that Miss Kaighn at one time contemplated the locating of the alley twenty feet further east, and although in point of fact there has, for many years, been an alley running northwardly from Sycamore Street about half-way through to Chestnut Street, in accordance with this latter plan. In 1823 Joseph Kaighn, the grantee of lots Nos. 18 and 19, conveyed them to Joseph Boggs for a valuable consideration, using the same description, calling for the alley, as had been used in the two deeds from Sarah Kaighn to him of March 10,

The

1821, and referring to that deed; and it will be here observed that both Joseph Kaighn and Joseph Boggs were trustees in the school-lot deed. Joseph Boggs died (just when does not appear), and his heirs, in 1843, thirteen years before the schoolhouse was built, subdivided lots 18 and 19 (which, it will be remembered, had, when combined, a frontage of eighty feet on Broadway and two hundred feet on Chestnut Street), which subdivision is shown on a map made by the counsel of both sides and exhibited for both parties at the hearing. By that subdivision they divided the two lots in question, Nos. 18 and 19, first into two parts, making two lots, one hundred feet front each on Chestnut Street, and the westward half of these two lots they again divided into four lots of twenty five feet front each on Chestnut Street and eighty feet deep. The most westward of these lots (the one nearest the school lots, being lot No. 10, in the Boggs subdivision) was conveyed by deed of April 4, 1843, to Francis Boggs, by his brothers and sisters, and is therein described as follows: "Beginning at the northwest corner of a twenty-feetwide alley and Chestnut Street, in the City of Camden; thence eastward twenty-five feet to the corner of lot No. 11; thence southward by lot No. 11 eighty feet to the corner of lot No. 11; thence westward twenty-five feet to a corner on the line of vacant land; thence north, and parallel with said alley, eighty feet to the place of beginning." This description is somewhat blind. The call for the northwest corner of the alley and Chestnut Street, as I construe the word "northwest," was an impossible call. There was no such corner. course of Chestnut Street was nearly due east and west, and the alley was situate wholly to the south of it. If the word "north" is omitted, and we construe the call to be for the west corner of Chestnut Street and the alley, we include the alley in the lot conveyed, which seems an unreasonable result. It is also difficult to understand why the word "parallel" was predicated of a line which was coincident with one side of the alley, whether we locate it one hundred and eighty or two hundred feet west of Broadway. These peculiarities in the description of the deed to Francis Boggs do not, however, seem to me sufficient to shake the result I have arrived at as to the location of the alley in question. Francis Boggs conveyed this lot, together with lot No. 11, to Adam R. Dill, by deed dated August 25, 1866, using the same description, except that it commences at the "southeast" corner of a twenty-feet-wide alley and Chestnut Street; and shortly after Dill built a dwelling upon it, the westerly side of which stands about five feet from the westerly line of the lot. The foregoing stated deeds comprise the paper title of the parties to the locus. No other conveyance was made by Miss Kaighn affecting it. Adam R. Dill devised the lots to the complainants. Before the year 1856, when the school authorities erected the schoolhouse, the schoolhouse lot had never been inclosed, but had laid open to common with the alley, being covered with brush and briars, and crossed in all directions by all persons at their pleasure. At or shortly after the erection of the schoolhouse the trustees inclosed the lot surrounding it, including the alley, by

a common board fence six or eight feet high, on all sides, and have kept it inclosed ever since. The part of it covered by the alley called for in the deeds has not been built upon, and the only use made of it has been for a play ground for the school-boys. The true original location of the easterly fence, or "back fence," as it was called at the hearing, of this inclosure was the only question of fact which was seriously litigated at the hearing. The defendants contended that this fence was erected in 1856 in its present location, which is two hundred and three feet west of Broadway, measured along Chestnut Street, and included nearly all the locus of the alley, and that it has been maintained in that position ever since. The complainants contended that it was at first, and for many years, and until within twenty years, located at the northerly end, twenty feet further west, and that there was a free passage along it from Chestnut Street to Sycamore Street up to a period within twenty years.

I do not deem it necessary to discuss the evidence at length, and content myself with saying that I think the decided weight of it is with the defendants; and I am satisfied that the fence has stood in its present position for nearly thirty-four years. Being satisfied that the fence has been in its present position for at least thirty-three years, I must hold that the defendants are entitled to the benefit in law of such inclosure for that period of time. No disability on the part of any owner of complainants' lot is alleged until the death of Adam R. Dill, which occurred in February, 1889.

Two questions arise upon this state of facts: First. What rights in the alley arose to the owner of complainants' lot out of the language used in the several deeds of March 8 and 10, 1821? Second. What is the effect upon those rights of the inclosure of the alley by the school authorities, and its use as a play-ground by the school children? With regard to the first question, I think it clear, in the first place, that the effect of the deeds was to carry the title to each of the grantees of the deeds just named to the center of the alley. There is no difference in principle in this respect between the use of the word "alley" and the word "street." It was so held in Wiggins v. MeCleary, 49 N. Y. 346, and the English Common Pleas held in Holmes v. Bellingham, 7 C. B. N. S. 329, that the presumption was that the title of proprietors of land abutting on a private way extended to the middle of the way. Chief Justice Cockburn (p. 336) said: "The same principle which applies in the case of a public road seems to me to apply with equal force to a private road." That seems to me a reasonable view. In the next place, the effect of the several deeds in question was to create a mutual estoppel between the parties,-the trustees of the school-lot on the one part and the grantee of complainants' lot on the other, each against the other,--and in favor of both as against Sarah Kaighn, to deny that the alley in question existed. Moreover, the use made of the word "alley" in the other conveyances, the extension through the entire block of that now known as "Sycamore Street," and the description of the one in question as extending from Chestnut Street to Sycamore Street, shows conclusively that it was intended to be and have

all the attributes of a public street. Upon the principal proposition I cite Washb. Easem., p. 170 et seq., and Goddard, Easem., Perk. ed., p. 264 et seq., and the cases there cited, and, further, Roberts v. Karr, 1 Taunt. 495, where Chief Justice Mansfield says: "If you [the lessor] have told me in your lease that this piece of land abuts on the road, you cannot be allowed to say that the land on which it abuts is not a road.' Also Espley v. Wilkes, L. R. 7 Exch. 298, where (at p. 303) Roberts v. Karr is cited with approval. In the latter case the land conveyed was described as abutting on "newly made streets," and the Chief Baron (p. 304) says: "Here the land is described as abutting upon 'newly made streets,' and the case is an authority to show that the grantor is estopped from denying that the strips of land (his property) are what he describes them to be, that is to say, streets, which they cannot be unless there be a way through and along them." I further cite Parker v. Smith, 17 Mass. 413, and Van O' Linda v. Lothrop, 21 Pick. 292. In this case land was sold bounded on an intended street, and at page 296 the court says: "As the purchasers of the estates on each side of the locus in quo did not acquire a right to the soil itself [holding a different rule in this respect from that prevailing here], it remains to be seen whether they acquired an easement over it. There was no express grant of a right of way, nor did any way pass as an appurtenant to the land granted, none being in use or in existence. If the defendant acquired an easement in the land, it must have been by implication, or on the principle of estoppel. The doctrine laid down in Parker v. Smith, 17 Mass. 413, seems to us to be a very reasonable and equitable one. That case, we think, was perfectly analogous to this; but if there be any difference, this is the stronger of the two. It was there said that the grantor and his heirs are estopped from denying that there is a street or way to the extent of the land on those two sides. We consider this to be not merely a description, but an implied covenant that there are such streets.' This opinion is decisive of this part of the case." The question was thoroughly discussed and the principle established in the case of Child v. Chappell, 9 N. Y. 246. The opinion of Morse, J. (p. 257), seems to me to state the doctrine clearly and truly, and I adopt it: "Where an owner of land lays it out in lots and streets, and exhibits the streets upon a map by which he sells and conveys lots so laid out, as between him and the purchasers of such lots, the spaces so laid down upon the map as streets are dedicated as such to the public use. This I understand to be the law, and in conformity to the principles of natural justice. The mere act of selling and conveying by such a map binds the grantor to permit the land so laid down as streets to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid out as streets. It is perhaps unnecessary now to consider whether such a grant as between the grantor and the public would be a dedication. The transaction is, however, in the first instance, strictly a private one as relates to the streets, as much as it is a private one as relates to the land actually conveyed. The right to use, and to have used, by