
    Lowe v. Redgate.
    1. A. owned adjacent lots lying north of an alley, and east of a street, and he laid out an alley extending east from the street on the west through the middle of the lots, and the part south of the alley he divided into sub-lots abutting on the alley, and made a plat of the same so divided. ( A. then sold to B. a sub-lot on the south side of this new alley, and prepared the deed for it by the aid of the plat, and showed both the deed and the plat toB., who insisted that the deed should contain a conveyance of the use of the new alley ; and before executing the deed' A. put into the granting clause of the deed the words : “The above named grantee, B., is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to he given April 1, 1874 then the deed was executed, the purchase money was paid, and the deed was delivered to B. As between A. and B., or her heirs or assigns, Held: (1) A. is estopped from denying the existence and location of the new alley, and the plat and deed are conclusive against such denial. (2) A. thereby granted to B. an easement in the alley appurtenant to the sub-lot conveyed to B.
    2. Where husband and wife are sued for alleged trespasses by the wife on a private alley in which the wife in her own right claims an easement and right of use appurtenant to a lot owned by her, in default for answer by the husband, the wife may make a separate defense without prejudice by such default, and, if her defense is good, it is complete as to both.
    EeboR to tlie District Court of Montgomery county.
    Peter P. Lowe brought suit against Samuel J. Redgate and Mary T. Redgate, for $1,000, damages for alleged trespasses of Mary T. Redgate, who was the wife of Samuel J. Red-gate. The plaintiff averred that Mary T. Redgate, on April 1, 1880, and on divers days since that time, without leave, wrongfully entered into and upon a strip of ground, being a rectangle forty feet long by fifteen feet wide, in lots numbered 1431 and 1438 in the city of Dayton, and broke down and destroyed a fence which had been erected by plaintiff across this strip of ground, &c. Samuel J. Redgate did not answer, as he seems to have been away, but Mary T. Redgate defended for herself. In her answer she averred that the strip of-ground in the petition described, is part of a private alley extending west through the west thirty feet of lot 1438 and the whole of lot 1437 to Jackson street; that on the 28th day of June, 1873, and long before that time, plaintiff owned lots 1437 and 1438 except a part of lot 1437 south of this alley and fronting thereon, which was then owned in fee by her ; that the plaintiff and his wife, on June 28, 1873, by deed of that date, for the consideration of $1,000, conveyed to the defendant, Mary T. Redgate, in fee, part of lot 1438 lying east of her fifty feet, and fronting thirty feet on the alley, and south thereof, and, as appurtenant thereto, the use of the adjoining alley lying north of the premises so conveyed, and that the fence obstructed her use thereof, and, after notice to plaintiff, it was removed by her without unnecessary injury, as it might lawfully and rightly be done.
    Plaintiff replied, denying that the strip of land ever was part of an alley, and averred that the same was and is only a private way in gross for the personal use of Mary T. Redgate, etc. On the trial, the jury found for the defendant.
    The plaintiff’s motion for a new trial was overruled, and a bill of exceptions was filed. This shows that upon the trial of the cause the plaintiff testified in his own behalf ; and upon cross-examination testified, that on June 28, 1873, he executed to the defendant, Mary T. Redgate, a deed of conveyance, of which the following is a copy :
    
      “ Know all Mm by these Presents:
    
    “ That Peter P. Lowe of the City of Dayton, Ohio, in consideration of one thousand dollars to him paid by Mary T. Redgate of the same place, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said Mary T. Redgate her heirs and assigns forever, the following piece of ground situate in lot No. 1438 in the City of Dayton, Montgomery County, Ohio, commencing at a point 15 feet East of the South-West corner of said Lot No. 1438 on the alley south of said lot, thence running East with said alley 15 feet, thence North, parallel with the East line of said lot 66 feet thence West, parallel with the South line of said lot 1438, thirty feet to the East line of lot No. 1437, thence South with the East line of said lot 1437, 34 feet to a, stake, thence East, parallel with the South line of lot 1438, fifteen feet to a stake, thence South, parallel with the East line of said lot 1437, thirty-two feet to the place of beginning ■ — The above named grantee Mary T. liedgate, is entitled to the use of another alley lying North of the premises hereby conveyed. Possession is to be given 1 April, 1874, and all, the Estate, Title and Interest of the said Peter P. Lowe either in Law or Equity, of, in and to the said premises, together with all the privileges and appurtenances to the same belonging : To have and to hold the same to the only proper use of the said Mary T. Redgate her heirs and assigns forever, and the said Peter P. Lowe for himself and for his heirs executors and administrators, do hereby covenant with the said Mary T. Redgate, her heirs and assigns that he is the true and lawful owner of the said premises and has full power to convey the same, that the title so conveyed, is clear, free and unincumbered, and further, that he will warrant and defend the same against all claim or claims of all persons whomsoever.
    “ In witness whereof, the said Peter P. Lowe and Ann Lowe his wife, who hereby releases her right and expectancy of dower in the said premises, have hereunto set their hands and seals this 28th day of June, in the year of our Lord, one thousand eight hundred and seventy-three.
    • “ Peter P. Lowe, [seal.]
    “ ANN Lowe. ■ [seal] ”
    This deed was duly signed, sealed, and acknowledged.
    That a short time prior to the execution of said deed, he had for his own convenience caused to be made a plat of so much of lots Nos. 1437 and 1438 In Dayton Ohio, as was then owned by him, of which plat the following is a copy—
    
      
    
    “ Plat of Peter P. Lowe’s sub-division of in-lots Nos. 1437 and 1438 in the city of Dayton. The above plat represents the lines as laid out and surveyed by me.
    “ SaM. B. Shoup, Surveyor
    
    
      Plaintiff: was tben the owner of all of said lots 1437 and 1438, except sixty-six (66) feet off the rear or south end of said lot No. 1437, and a parcel or piece of ground 15 feet in width by thirty-two (32) feet in length in the south-west corner of said lot No. 1438, which said parcels at that time belonged to said Mary T. Redgate and still belong to her. On said plat said lots 1437 and 1438 extend across the whole length thereof from Fifth street on the north to the alley on the south.,’
    Said plat was never recorded, and was made merely for his own convenience and to assist him in determining how he could sub-divide said premises to the best advantage.
    PlaintjfE’s contract for the sale of the premises described in said deed to Mrs. Redgate was made with one Sowers, who acted as her agent and agreed verbally to give for said premises as the same are bounded and described in said deed the sum of one thousand- ($1,000) dollars. In making said contract, nothing was said by either party about said private alley or any alley on the north side of said premises, and said plat was not shown to said agent nor said defendant Mary T. Red-gate. Afterwards the defendant Samuel J. Redgate came to plaintiff’s office, and said Mrs. Redgate would take the property at the price named, and plaintiff got said plat or map for the purpose of taking therefrom and writing in said deed the metes and bounds and a description of said premises, and thereupon wrote said deed and inserted therein the description of said premises by metes and bounds as the same now appears therein, and had fully prepared the deed for execution, when Samuel J. Redgate having observed this plat wrhile the plaintiff was writing the- deed,' said he wanted the use of this alley for his wife. The plaintiff at first refused to give her, said Mary T. Redgate, the use of any part of said alley, but finally consented to give her the personal use of said forty feet and then inserted in said deed the following clause, to wit: “ The above iamed grantee, Mary T. Redgate, is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to be given 1st April 1874.” No additional consideration was paid or agreed to be paid for the use of said alley. Said Mary T. Redgate lias at no time attempted to use said alley personally, but ever since the execution of said conveyance has rented said premises to tenants, and has undertaken to transfer and assign to them the use of said alley, and they have used and attempted to use the same as a way for animals and vehicles. The defendant, Mary T. Redgate, is an infirm old woman, who, at the time of this conveyance to her and long afterwards resided in a part of the city remote from the premises. Her husband Samuel J. Redgate attended to her business and is now said to be in England.
    The agent, Mr. Sowers, employed by her to negotiate for the premises with the plaintiff, died before any litigation arose in relation to the alley. +
    
    There was other testimony as to the obstructions, where the fence was, when and how removed, the amount of damages, etc.
    The defendant offered no evidence, as she relied upon her rights under the deed.
    
    And thereupon said plaintiff asked the court to charge the jury that said deed gave to the said Mary T. Redgate only the right to use said alley personally, and not a right of way for vehicles or animals; and that she could not transfer or assign her right to use said alley to her tenants or other persons, and that said plaintiff had the right to fence said alley to prevent its use by persons other than said defendant, provided he did not interfere with the personal use thereof by said defendant, which charge the court refused to give, and said plaintiff excepted. And thereupon, said plaintiff further asked the court to charge said jury, that upon the pleadings and the evidence in said case said jui-y was bound to return a verdict for said plaintiff, and that the only question which should be considered by said jury was the amount of damages which should be awarded to said plaintiff, which charge said court also refused to give and said plaintiff excepted. And thereupon the court charged the jury in writing, and stated fully the issues made by the pleadings; and also charged the jury that, “ The defendant Mary T. Redgate by her separate answer, justifies under a claim of right to the use of the premises on which, the trespasses are alleged to have been committed, by a deed to her from the plaintiff. I take it therefore to be the law, and so hold, that in pursuance of her right to control and manage her separate estate, that the defendant, Mary T. Red-gate, in a case like the present, has the right to make asepai’ate defense, and that she cannot be prejudiced by the default of her husband to make one. If her defense is good it is complete as to both. If insufficient, a joint judgment may be rendered against both or a separate judgment against her husband if he only is found to be the guilty party. The deed put in evidence under which defendant seeks to justify, shows that it was executed to her on the 28th of June, 1873, by the plaintiff, for the lot of land therein described, and as part of the granting clause of the same are found the words following, which I am asked to construe as to the character and extent of the easement thereby conveyed. The words are : — “ The above named grantee Mary T. Redgate is entitled to the use of another alley lying north of the premises hereby conveyed.” In the case of Irwin's heirs v. Longworth, 20 Ohio Reports, 603, the supreme court laid down this rule of construction in the case of deeds. “ A strict, literal and grammatical construction of an instrument in its various parts, taken separately, would sometimes be absurd, sometimes contradictory and frequently unjust, because against the manifest intention of the parties; but a liberal consideration is to be had of the whole instrument in relation to the subject matter, to discover what was the true intention of the parties.” Looking at the deed from the plaintiff to the defendant Mary T. Redgate, according to the rules of construction just cited, taking the whole instrument, habendum and granting clause together, I ain led to the conclusion and so hold, that the words in said deed, conveyed an easement in fee in the alley referred to therein, if such an alley existed in fact or in the contemplation of the parties along or against the line of the lot conveyed, at the time of the conveyance, either as a public alley or as a private alley or strip of land, if the ownership of which was then in the plaintiff.”
    The plaintiff excepted to so much of said charge as instructed the jury that the defendant Mary T. Redgate had the right to make a separate defense in said action, and could not be prejudiced by the default of her husband, and that if her defense was good it was complete as to both. And said plaintiff further excepted to so much of said charge as instructed said jury that the words in the deed of said plaintiff, to said Mary T. Redgate, “ conveyed an easement in fee in the alley referred to therein, if such an alley existed in fact or in the contemplation of the parties along or against the line of the lot conveyed, at the time of the conveyance, either as a public alley or as a private alley or a strip of land, if the ownership of which was then in the plaintiff.”
    After judgment for defendant, the ease was taken to the district court on error, where the judgment was affirmed; and plaintiff brings his case here, claiming error.
    
      Young c& Young, for 'plaintiff in error :
    An easement can only be created by grant. Ways of prescription, implication or necessity all rest upon the presumption of a grant. 2 Washburn on Real Prop. 301, 303.
    Did this deed grant to the defendant as appurtenant to the premises therein conveyed a right of way over the ground designated on the plat as a “private alloy ?”
    With reference to this alley there are no granting words in the deed. The clause referring to it is entirely distinct and independent of the prior clause describing the premises conveyed.
    An easement, such as described in defendant’s answer, is a right in the owner of one parcel of land, by virtue of such ownership, to use the land of another for a special purpose not inconsistent with the general property of the owner, and there must bo both a dominant and servient estate. 2 Washburn R. P. 299 ; 38 Cal. 113.
    But here the alley is not mentioned in connection with the estate or premises conveyed, but only in connection with the person of the grantee. And, if a grant was intended, there is nothing in the language of the deed which manifests an intention on the part of the grantor to grant the use of the alley for the benefit of or as appurtenant to the premises conveyed, but only to the grantee, personally, for her personal use.
    The intention to make it appurtenant must appear from the deed itself, and cannot be ascertained by parol, or matters aliunde ; and in the absence of any such expressed intention in the deed, or any language describing it as appurtenant, or from which it can fairly be implied, we insist that at the very best, this clause amounts to no more than the grant of a right of way in gross to the defendant. Wagner v. Hanna, 38 Cal. 111.
    The testimony shows that Mrs. Redgate never attempted to use said alley, personally, but living remote from the same, transferred and assigned its use to her tenants. Such use, by her tenants, the plaintiff had the right to prevent, and if necessary to that end, stop the use of the alley altogether, until the lawful could be separated from the unlawful use. Wash-burn on Easements, 677; Washburn on Easements, 252 (195*) ; Allans v. Hoardman, 2 Met. (Mass.)-, 464 ; Garland v. Harter, 47 N. II. 301; B eaver v. Coleman, 44 N. H. 539; Maxwell v. MeAtee, 9 33. Mon. 20; JDavemport v. Lamson, 21 Pick. 72 ; Goddard on Easements, 281; 14 Allen, 42.
    Not being granted as an appurtenance, it cannot be made so by the habendum, which cannot extend the subject matter of the grant. 3 Washburn on R. P. 438. As a way in gross it was not assignable. Boatman v. Lasley, 23 Ohio St. 614; Junction JR. R. Co. v. Ruggles, 7 Ohio St. 7; Washburn on Easements, 10 ; 19 Ill. 558; 3 Kent, 420; Angelí on Highways, § 1.
    If the plat was admissible to show what the parties intended, it was in the nature of a representation, and the declarations of the grantor made at the time, qualifying such representation, were properly admitted in evidence, and should have been considered. Wallcer v. Worcester, 6 Gray, 548, 550.
    With regard to the claim that Mrs. Redgate had the right to make a separate defense, and could not be prejudiced by the default of her husband, and that if her defense was good, it was complete as to both, we refer to Cooledge v. Parris, 8 Ohio St. 694; Fowler v. Chichester, 26 Ohio St. 9 ; Ciarle v. Bayer, 32 Ohio St. 299.
    
      
      Iddings <& Iddings, for defendant in error:
    I. The deed containing a clause granting the right of way, by means of an alley lying north, it is not competent for the parties to claim that the grant of the way did not enter into the consideration of the deed. It would be as competent to except the buildings by parol. A right of way is never construed in gross when it can be fairly construed to be appurtenant. And the language used indicates that she take as “ grantee.” Washburn on Easements, ch. 2, § 1.
    II. The alley, being appurtenant, passes with the land. It i@ a part of it; and can be enjoyed by any one having title to the lands, whether for years, or for life, or in fee. And whether the title is in Mrs. Redgate in fee or,for life only in the right of way, in any event during her life (being an appurtenance), it is enjoyable by her or her tenants.
    III. But the right of way is neither in gross, nor limited to her during life. The grant indicates that the way granted is to be held by as broad a title as the land. For the way is first annexed to the land as an appurtenance ; and then, in the granting clause and not merely in the habendum), the “ privileges and appurtenances” are given to her and her heirs and assigns forever. The whole instrument is to be looked into to ascertain the extent of the grant.
    IT.. The deed refers to an alley lying north, and this estops the grantor to aver its non-existence. The extent of this es-toppel varies according to circumstances.
    T. The objection as to want of boundaries is not well taken. Leaving the plat out of consideration, if there was nothing but the language of the deed, the court would give a reasonable alley. The plat furnished the usual width. Washburn on Easements, 188.
    TI. As to the effect of the defense of Mrs. Redgate, her husband being in default, see Sprague v. Childs, 16 Ohio St. 107.
   Follett, J.,

Two questions arise in this case :

I. What right to or in this strip of land is conveyed by the deed to Mary T. Redgate ?

II. Can Mary T. Redgate defend alone for lier right ?

I. Eor the solution of the first question, we need look only.' to the plat and the deed. The plat, whether recorded or not, in this case is binding upon the plaintiff, and is conclusive upon him as to the boundaries and location of what he took therefrom and placed in the deed. It was by and from this plat, so made for him by a surveyor, and shown to grantee’s agent, that he made this deed. And the conveyance as to this alley so platted was required by Mary T. Redgate, through her husband who acted for her, before the deed was made and' before the money was paid.

This plat and the language of the deed show that there' was “ another alley lying north of the premises hereby conveyed,” as well as “ the alley south of said lot ” by which plaintiff bounded the premises conveyed. Plaintiff does not deny the existence of “ the alley south of said lot,” and in the • deed and in the plat he says just as distinctly' that there is “ another alley lying north of the premises hereby ;conveyed.” Now the plaintiff cannot be permitted to say, there is not an alley lying north of the premises so conveyed.

There is such an alley in this case. See Parker v. Smith, 17 Mass. 413; O'Linda v. Lathrop, 21 Pick. 292; Stetson v. Dow, 16 Gray, 372; Smith v. Lock, 18 Mich. 56; Smyles v. Hastings, 22 N. Y. 217; White v. Flannigan, 1 Md. 525; Goddard’s Law of Easements, 95, 96.

But plaintiff says, if there is such an alley, he conveyed only a right of way in gross, personal to Mary T. Redgate.

We will not examine the question, whether all rights of way merely are only in gross, and are not easements, as some claim, as this deed does not purport to convey simply a right of way. ■ ■

Easements exist at common law, and, among other way's,' may be created by deed. In this case, the nature and extent of the easement are- determined by the words’ used in the deed by the grantor.

The plaintiff had sold the lot adjoining and was conveying the same in fee simple. The purchaser insisted that lie should-also convey to the grantee the use of this alley lying adjacent on the north — not merely a right of way thereon.

The extent and location of this alley are shown by the plat; and plaintiff used the language in the deed to carry out his agreement with the grantee. He places this grant in the granting clause of the deed, so that all the other parts of the deed have reference to this burden and right in the servient estate, as well as to the other part of the granting clause.

That each part of a deed must be construed with, and in reference to, every other part thereof, is an established rule ; and in construing this part of this deed, the court below did not err in “ taking the whole instrument, habendum and granting clause together,” into- consideration. The deed does not purport to convey only a right of way in this alley; but the granting clause contains the words, The above named grantee, Mary T. Redgate, is entitled to the use of another alley lying-north of the premises hereby conveyed. Possession is to be given April 1, 1874.” And this use is granted to her, and to her heirs and assigns forever.

The other alley bounded the premises purchased and conveyed on the south, and this alley is spoken of as another alley lying north of the premises conveyed. She is thus granted the use of this alley for any purpose for which the alley may be used, and a definite time is fixed for taking possession of it; and this easement is appurtenant to the lot deeded. The court below did not err in the charge and conclusion, that the words in said deed conveyed an easement in fee in the alley referred to therein.”

II. Can Mary T. Redgate defend alone for her right ?

An affirmative answer to this question is apparent, when it is shown that Mary T. Redgate has the right to the use of the premises on which the trespasses are alleged to have been committed.

Revised Statutes, § 4997, provide : “ When husband and wife are sued together, the wife may defend for her own right; and if the husband neglect to defend, she may also defend for his right.”

Plaintiff, in his petition, charges her alone with the trespasses, and against such a charge she. may defend. Her answer in this case, set up a complete defense to plaintiff’s action, and this she established. The court did not err in the charge, as to her separate defense.

Judgment affirmed.  