
    Wytheville.
    Hancock and Others v. Thornhill.
    June 8, 1916.
    Absent, Cardwell, J.
    1. Easements—Ownership of Fee and Easement.—The fee simple owner of property cannot have an easement or right of way, which is a lesser estate, between different parts of it.
    2. Easement—Creation—Deed of Partition—Case at Bar.—Where two heirs execute a deed of partition between themselves of a city lot upon each side of which there was a factory building, with an open space of fifty feet between the buildings, which was used in connection with both factories as an alley or passage way, and the lot conveyed to each is described as “including one-half of an alley 24 feet 6 inches wide,” such deed is a dedication of said alley as a joint alley for the common benefit of each of said lots. This construction is confirmed in the case at bar by the contemporaneous construction placed upon the deed of partition by the parties thereto.
    Appeal from decree of the Corporation Court of the city of Lynchburg. Decree for the complainant. Defendants appeal.
    
      Reversed.
    
    The opinion states the case.
    
      Harrison & Long, for the appellants.
    
      Caskie & Caskie, for the appellee.
   Whittle, J.,

delivered the opinion of the court.

The material facts disclosed by this record are these: Prior to the year 1888, the lots in question, and other property located in the city of Lynchburg, belonged to Ammon G. Hancock, who devised the same to his wife for life, with remainder in fee to his four children, namely, James Hancock, Lilly H. Thornhill, Ernest J. Hancock and Edwin A. Hancock. The two lots involved fronted on Cabell street and extended back between parallel lines to Blackwater street. On each of these lots was located a large tobacco factory; the buildings being separated by an open space forty-eight or fifty feet in width, which was used in connection with both factories as an alley or passageway.

At the death of Mrs. Hancock, the children agreed upon a division of the estate, and by deed of partition (of November 26, 1894) the “new factory lot” was conveyed jointly to Lilly N. Thornhill and Ernest J. Hancock, described as follows: “New brick factory and lot adjoining last mentioned property fronting on Cabell street 50 feet 6 inches (including one-half of an alley 24 feet 6 inches wide) and running back to Blackwater street. ...” The lot conveyed to Edwin A. Hancock (now owned by his heirs, the appellants) is described as, “Factory and lot adjoining last mentioned lot on Cabell street, including one-half of an, alley 24 feet 6 inches between this and last mentioned property, and running back to Blackwater street. ...”

Subsequently, Ernest J. Hancock (the joint tenant of Lilly H. Thornhill, complainant below, and appellee here, conveyed his undivided moiety in the lot in trust to secure debts, describing it as an “undivided one-half interest in a certain factory and lot at the lower end of Cabell street .. . fronting on Cabell street 50 feet, and running back of even width to Blackwater street. Also all right, title and interest of said party of the first part in and to an alleyway 24)^ feet wide adjoining the above. . . ” His interest was sold under the deed of trust and purchased by appellee, who thus became the owner of the entire lot.

It is true that Ammon J. Hancock, the fee simple owner of the whole property, could not have had a separate easement (a lesser estate) in the vacant space between the buildings. Scott v. Beutel, 23 Gratt. (64 Va.) 1; Turner v. S. & W. Imp. Co., 118 Va. 720, 88 S. E. 85. Nevertheless, during his life time the space was kept open and used as a passageway to give access from Cabell street to both factories, and that use continued to the date of the partition deed; and from that time hitherto the passageway, to the width of 24 feet 6 inches, has been jointly used by the respective owners in connection with the two properties. When the lots passed to Ammon G. Hancock’s devisees and a division was agreed on among them, it became necessary to determine either to dedicate the vacant space, in whole or in part, to a joint alley, or else to abolish it altogether and divide the.space between the subdivisions freed from the servitude of an alleyway. If the latter conclusion had been reached, obviously, it would only have been necessary to fix the dividing line, and no mention of an alley should, or probably would, have been made. But if the former was intended, a new right had to be created, and it was essential to set forth the reservation in apt language in the deed. Accordingly, a joint alley 24 feet 6 inches wide was agreed on; and, for the common benefit, each lot was made liable for one-half of the easement;

This, we think, is the true construction of the partition deed; and the contemporaneous interpretation placed upon it by the parties is in accordance with that view. To utilize all the land acquired by him under the partition deed, Edwin A. Hancock erected an addition to Ms factory upon the line of the alley as established by the deed, leaving an open space of 24 feet 6 inches between the properties. In like manner appellee erected a platform on her side of the alley, coincident therewith, for the use of her factory. Besides, for twenty years, without question, the alley was maintained and used in common by the owners and their tenants. Not until shortly before the institution of this suit was the right of appellants to an easement of way over appellee’s half of the alley drawn in question, and then not by Mrs. Thornhill, but by the attorney of a prospective purchaser of her lot. From an adverse decree the appellants applied for and obtained this appeal.

There is no continuous passageway between the lots from Cabell street to Blackwater street for the reason that about midway between these streets there is a sheer drop of seventeen feet, dividing the upper and lower levels, which is supported by a transverse retaining wall. In the lifetime of Ammon G. Hancock a small frame dwelling was erected on the protion of the 50 foot passageway over the lot fronting on Black-water street, on the side afterwards allotted to Edwin A Hancock; and, after the execution of the partition deed, a brick boiler house was built on the site of the frame building and used in connection with the factory. TMs boiler house encroaches on the 24 feet 6 inches of land reserved as an alley in the deed of partition, which fact is relied on to repel the contention that the parties contemplated the establishment of a joint alley.

The record is silent as to the circumstances sur-? rounding that transaction. Yet, in itself, it cannot be deemed sufficient to nullify the plain language of the partition deed, which, we think, shows that it was the intention of the parties to establish a joint alley over the entire property from Cabell street to Blackwater street. If either party has obstructed the alley, upon application of the adjoining owner the trial court will cause such obstruction to be removed.

We are of opinion that the corporation court erred in decreeing that appelle, Lilly H. Thornhill, is entitled to hold the 12 feet and 3 inches of vacant space adjoining the building on her lot free from any right or claim on the part of appellants to an easement over the same as constituting one-half of a joint alley; but to the contrary the court should have decreed that according to the true construction of the partition deed, it establishes a joint alley 24 feet 6 inches wide between the adjoining properties, to which each is to contribute equally, extending from Cabell street to Blackwater street.

For the error aforesaid the decree must be reversed, and the case remanded for further proceedings to be had therein not in conflict with the views expressed in this opinion.

Reversed.  