
    RIVES vs. HICKEY.
    Equity.
    No. 2758.
    Where a deed of conveyance contained a clause giving the privilege of a road through the land of the grantor, hut the same had not been executed by laying out the road for a period of more than sixty years, it will become inoperative as against a purchaser of the land, subject to such road, who had no notice of such claim, and where there was no road actually in existence at the time of his purchase.
    STATEMENT OP THE CASE.
    In the year 1812, one James Clerklee owned a tract of land in the county of Washington, D. C., fronting on the Bladensburg turnpike road, and containing 300 acres.
    On the 21st of September of the same year he sold and conveyed to one William Brent about 200 acres of said tract, more or less, and the deed conveying the same to said Brent contains this clause: “And also the privilege of a road from the land hereby conveyed, at least 15 feet wide, through the •land of said Clerklee, from the stone quarter erected near the north line of said tract, in the most convenient direction to the turnpike road.”
    In 1835, Brent sold and conveyed to Hickey, father of defendant, the land conveyed by Clerklee; and Franklin Rives, the plaintiff, in April, 1871, purchased and now owns 40.43 of the land of Clerklee, reserved by him from the conveyance to Brent. At that time plaintiff had no notice that defendant claimed any right of way over said land, and he swears positively there was none then in existence. The defendant has commenced to cut a roadway through plaintiff’s land under the covenant in the aforesaid deed from Clerklee to Brent, and the bill is filed to enjoin him from making or using such roadway.
    There is no evidence in the case to show that said covenant had ever been executed by the laying out of a road thereunder down to the year 1835, the date of the conveyance to defendant’s father; and considerable testimony was read upon the hearing as to whether any particular defined roadway through plaintiff’s land had been located or used since 1835 to the time of filing the bill. Prior to 1840 defendant’s father, through whom this claim is made, obtained two other and more convenient outlets to the turnpike road over land now owned by defendant and his sister.
    W. D. Davidge and R. K. Elliott, for complainant, cited—
    Washburn on Easements, 71-631; Stoker vs. Singer, 8 Ellis and B., 31, 39; Perkins vs. Dunham, 3 Strobh., 224; Dyer vs. Sandford, 9 Met., 395.
    
      J. D. McPherson and W. M. Shuster, for defendant, cited—
    
      Ward vs. Ward, 7 Ex., ch. 838; 2 Greenf., Cruise 29; Farnum vs. Platt, 8 Pick., 339; Washburn on Easements, p. 551; 24 Pick., 106.
   By the Court : The following are in substance the grounds upon which the decree below was affirmed:

1. That by the non-execution of the covenant contained in Clerklee’s deed, as quoted above, for a period of more than sixty years, it has become inoperative, and, in this case, cannot be revived and asserted, as against the plaintiff.

2. That the covenant above quoted, did not, of itself, locate the route of the proposed right of way, and that inasmuch as the immediate parties thereto never caused it to be actually executed upon the land, it rested merely in treaty, and cannot, at this day, be set up to the prejudice of an innocent, purchaser for value without notice.

3. That the assignees of the grantee named in the deed of 1812, having subsequently acquired, over their own land, two roads more convenient to the turnpike, and having used them exclusively as such, and thereby induced the plaintiff and all others to believe that they asserted no claim to any other road, they are concluded in a court of equity from so doing, especially as against the plaintiff who stands in relation of an innocent purchaser of a part of the servient estate for value,, without notice of any easement thereon.

4. The "privilege of a road” given by express grant, may be lost under such circumstances as against such bona-fide purchaser without notice, although mere non-use alone of an existing and defined right of way might not operate to produce that result.

The decree is affirmed.  