RICHARD PAUL, Inc.
UNION IMPROVEMENT CO.
W. Thomas Knowles, of Knowles & Allmond, Wilmington, for plaintiff.
E. Ennalls Berl and James L. Latchum, of Berl, Potter & Anderson, Wilmington, for defendant.
BRAMHALL, Vice Chancellor.
Plaintiff, on the twenty-eighth day of February, 1951, leased from defendant, the basement and first and second floors of a four-story building located at the southeast corner of Ninth and Walnut Streets, Wilmington, Delaware. One of the pertinent provisions of the lease is the following: 'Together with an airway of approximately twenty feet surrounding said building (reserved, however, for ingress and egress to the third and fourth floors, the use of said airway, the necessary stairways,[32 Del.Ch. 335] and the use of the elevator to the lessor, its tenants, officers and agents).'
Two other leases between the parties, the first of which was executed in the year 1942, also contained a similar provision. At the time of the execution of the original lease in 1942, and continuing thereafter up to the present time, there was a twenty foot open space extending on the south and east sides of the building in question, with an entrance thereto from both Ninth Street and Walnut Street, used by the occupants of said building as a driveway. The two upper floors were rented by defendant to another tenant with the use of the facilities of the building, including heat. Subsequent to 1942 and continuing up to the present time the way has been used by the plaintiff and the other lessee as a driveway and parking space. Plaintiff was and is engaged in the manufacture of an article know in the trade as 'Peds'. Most of its products were shipped daily by parcel post, being delivered from the place of business of plaintiff to the post office in a station wagon. The testimony of plaintiff's driver was to the effect that his practice was to enter the driveway on the Ninth Street side and drive up to the loading platform on the south side of the building and then proceed out into the street by the Walnut Street entrance. If the truck of the other lessee was at the loading platform at that time, plaintiff's driver would turn his truck at the corner of the driveway on the southeast side of said building, back up his truck at or near the loading platform, and after being loaded he would proceed out into the street by the Ninth Street entrance. There was some testimony offered by defendant showing that at times the Walnut Street entrance was used exclusively.
The defendant is and was also the owner of an adjoining tract of land to the east and south of the building used by the plaintiff and the other lessee. At the time of the original lease, and continuing up until shortly before the institution of these proceedings, there was a high wire fence adjoining
The questions involved are:
1. What are plaintiff's rights relative to the use of the way?
2. Were plaintiff's rights violated by the action of defendant?
3. Is plaintiff entitled to an injunction compelling defendant to remove the alleged obstructions?
1. What are plaintiff's rights relative to the use of the way?
Plaintiff contends that the word 'airway' as used in the leases, was ambiguous and should be construed. Plaintiff further contends that from a reading of the leases as a whole and from the construction placed upon the word by the parties, the word 'airway' should be interpreted as meaning[32 Del.Ch. 337] 'driveway'. The meaning of the word 'airway' is usually literally defined as a 'passage through the air'. Webster's New International Dictionary. To interpret the word 'airway' as meaning 'driveway', which is commonly interpreted as a passageway over the ground, would, it seems, be somewhat strained. However, since my decision in this case is not based upon the interpretation of this word, I shall not attempt further to construe it.
The premises occupied by the plaintiff were used for manufacturing purposes. Other than the use of the word 'airway', there is no provision in any of the leases as to any way given to plaintiff. However, at the time of the execution of the original lease in 1942, and prior thereto, there was a twenty foot open space on the south and east side of said building, used as a driveway, being open at both ends, except by gates, and there was an entrance for loading on the south side of said building.
It is conceded by defendant that plaintiff has a way, by necessity, of ingress and egress for the general purpose of carrying on plaintiff's business. It is also acknowledged by defendant that perhaps that right-of-way extends from Walnut Street to the loading platform at the south side of the building. Defendant denies, however, that by reason of this way of necessity plaintiff's way extends farther than that and contends that plaintiff has no control over that portion of the way on the south side beyond the loading platform or over any of that portion of the way on the east side of the building or over the entrance on Ninth Street.
If defendant's contention is correct, then plaintiff cannot be compelled to remove the fence and gate at the southeast end of the building or the fence closing the entrance entirely on Ninth Street, since they are beyond the loading platform. Defendant would therefore be within its rights in erecting the fences at the southeast corner and at the Ninth Street entrance.
Considered solely as a way by necessity there is [32 Del.Ch. 338] considerable force to the argument of defendant. As a general rule, a way by implication arises only from necessity, not form convenience, 32 Am.Jur., Sec. 170, p. 166. As a matter of necessity and not of convenience plaintiff could load either by backing into the way from Walnut
Street or driving in from Walnut Street and backing out. If the way should be occupied by parked cars and station wagon of the plaintiff and the other lessee, they could of course be moved. In view of the congested parking conditions today, this would undoubtedly entail considerable inconvenience to the management and employees of the plaintiff and affect the orderly course of plaintiff's business.
However, the plaintiff in this case is not limited strictly to a way of necessity. The way was in existence in 1942 at the time of the original lease between plaintiff and defendant. The location of the way around the building was an appurtenance to the building, which was apparent upon a casual examination of the premises. Upon entering the premises as a tenant plaintiff used the way in its entirety, going in and out of both entrances and also parking cars thereon. Plaintiff continued such use in this manner from that time until just prior to the institution of this suit. Under these circumstances, the way in effect at that time passed as an incident or appurtenance to the demised premises. Every grant naturally and necessarily imports a grant as it actually exists at the time unless the contrary is asserted and whatever are proper incidents and appurtenances of the grant will pass by operation of law. U. S. v. Appleton, Fed.Cas.No. 14, 463, 1 Summ. 492; McElroy v. McLeay, 71 Vt. 396, 45 A. 898; Toothe v. Bryce, 50 N.J.Eq. 589, 25 A. 182. Where an implied easement consists of a formed or enclosed right-of-way, such a right-of-way will pass by implied grant even though it is not a strict way of necessity. See cases cited in 17 Am.Jur., Sec. 44, p. 955, note 10.
Assuming that there was no way in use at the time of the original lease, the use of the way in the manner and to the extent of its use by plaintiff constitutes a selection [32 Del.Ch. 339] of the way by plaintiff. Plaintiff was entitled to a way by necessity. The lease was silent as to such a way. Plaintiff by its use of the way made the selection and defendant, by its silence acquiesced therein. Acquiescence of the owner of the servient estate in the use of a particular location of the way determines the route.
When a right to a way is general as to the extent of the burden to be imposed upon the servient tenement, an exercise of the right with the acquiescence and consent of the other party in a particular course and manner fixes the right and limits it to the particular course and manner in which it has been enjoyed and cannot be changed without the consent of both parties. 2 Thompson on Real Property, Perm.Ed., Sec. 564, p. 164; Scott v. Black, 95 W.Va. 48, 120 S.E. 167; Snodgrass v. Crane, 57 Cal.App.2d 565, 134 P.2d 862; Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 145 A.L.R. 1343; Douglas v. Jordan, 232 Mich. 283, 205 N.W. 52, 41 A.L.R. 1437; Winslow v. Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851; Hamilton v. Dennison, 56 Conn. 359, 15 A. 748, 1 L.R.A. 287.
I therefore conclude that plaintiff has the right to the full use of the way in the manner and to the extent of its use since 1942.
2. Were plaintiff's rights violated?
With respect to the testimony concerning the changes in the way made by the defendant there is no real dispute. All the essential facts are admitted, namely: tearing down the wooden fences and garages on the east side, erecting the small fence and gate at the southeast corner, tearing down the gate at the Ninth Street entrance and erecting in place thereof a wire fence without any gates. Since I have concluded that defendant could not legally change the way ...