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Richard Paul, Inc. v. Union Imp. Co.

Supreme Court of Delaware

August 4, 1952


Page 50

[33 Del.Ch. 116] W. T. Knowles (of Knowles & Allmond), Wilmington, for appellant and cross-appellee.

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E. Ennalls Berl and James L. Latchum (of Berl, Potter & Anderson), Wilmington, for appellee and cross-appellant.

WOLCOTT and TUNNELL, Justices, and TERRY, Judge, sitting.

WOLCOTT, Justice.

This is an appeal from a final judgment in Chancery entered in a cause in which Richard Paul, Inc., a California corporation (hereinafter referred to as plaintiff), seeks to compel Union Improvement Company, a Delaware corporation (hereinafter referred to as defendant) to remove certain obstructions across an areaway or alley bounding two sides of a building leased by the plaintiff from the defendant. The cause proceeded to final hearing before the Vice-Chancellor who filed an opinion, 86 A.2d 744 holding that the plaintiff possessed the right to use the alley and that the objected to obstructions should be removed. On March 14, 1952, the Vice-Chancellor entered an order on his opinion requiring the defendant to remove the obstructions, permitting the erection of a gate at one of the two entrances to the alley and requiring the plaintiff to keep that gate closed and locked at all times when it was not in use.

Thereafter, the defendant prayed for a modification of the order of March 14, 1952 on the ground that compliance with the requirements of the order imposed an undue hardship on it without resulting in any material benefit to the plaintiff. The defendant suggested an alternative means of ingress and egress for the [33 Del.Ch. 117] plaintiff through a parking lot owned by the defendant adjacent to the plaintiff's premises. Plaintiff objected to the proposed modification but, on April 23, 1952, the Vice-Chancellor entered a final judgment giving the plaintiff relief in the form suggested by the defendant.

From the final judgment both parties have appealed. The cross-appeals bring before us for review the cause in its entirety, not only as to the respective rights of the parties under the lease, but also as to the extent of relief, if any, to be given.

It is necessary to state the facts. The defendant is the owner of a four-story building located at the southeast corner of Ninth and Walnut Streets in Wilmington. Running along the southerly and easterly sides of the building, and forming a right angle at the southeastern corner of the building is a twenty-foot wide areaway, or alley, having exists with gates on both Walnut and Ninth Streets, and which until recently was enclosed by fences and row garages along its southern and eastern sides.

The defendant owns the contiguous land to the east and south of the premises leased to the plaintiff. In 1942 and until the events leading to this litigation took place, the defendant's contiguous land to the south and east was occupied by a number of private garages.

The plaintiff is a manufacturer of an article of women's footwear called 'Peds'. In 1942, it entered into a lease with the defendant for the first and second floors and basement of the defendant's building as a factory for the manufacture of those articles. Twice since 1942, the plaintiff has entered into new leases for the same premises, the last one having been entered into on February 28, 1951 for a term expiring on November 30, 1952. All of the leases have contained the following provision:

'That the Lessor has rented to the said Lessee, and the Lessee has rented from the said Lessor, the basement and first and second floors of All that certain four-story building located on the southeast corner of Ninth and Walnut Streets, Wilmington, Delaware, together with an airway of approximately twenty (20) feet surrounding said building (reserving, however, for ingress and egress to the third and fourth floors the use of said airway, the necessary stairways, and the use of the elevator to the Lessor, its tenants, officers and agents), * * *.'

[33 Del.Ch. 118] Throughout the period the plaintiff has leased the premises from the defendant, a third party has been in possession of the third and fourth floors of the building under a lease entered into with the defendant. Such third party is permitted ingress and

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Throughout the term of its various leases the plaintiff shipped its product daily by parcel post, loading its shipments into its truck at the loading platform on the south side of the building. It used parts of the alley for parking purposes, and used both the Ninth and Walnut Street entrances. At its own expense the plaintiff did such repair and maintenance as was done to the alley throughout the term of the leases. The defendant knew of these facts.

Some time in November, 1951, the defendant, having decided to convert its property adjacent to the building and alley on the south and east to a parking lot, removed the fences and row garages along the south and east sides of the alley and covered the entire area, including the surface of the alley with macadam. The parking lot was enclosed by a high cyclone wire fence which extended across and closed the outlet of the alley into Ninth Street. The bed of the alley was separated from the rest of the parking lot on the east by a wooden parking rail. In addition, the defendant erected a fourteen foot wire gate at the southeastern corner of the building. This gate is erected parallel to Walnut Street and in the same line as the east wall of the building. It bars entrance to the defendant's parking lot and the easterly portion of the alley from that portion of the alley leading off Walnut Street.

The foregoing facts are the background of this action. The plaintiff seeks to compel the defendant to remove the obstructions to its unhampered use of the alley in question, which it says it is entitled to under the terms of its lease. The defendant argues that the plaintiff has at most a way of necessity in the southern half of [33 Del.Ch. 119] the alley and that, in any event, to compel it to remove the obstructions would impose an undue hardship upon it without resulting in any material benefit to the plaintiff.

It is to be observed that the language of the plaintiff's lease hereinbefore quoted contains a reference to the grant of an 'airway' to the plaintiff and expressly reserves to the defendant the right of ingress and egress through that 'airway'. Defendant insists that the word 'airway' must be interpreted literally and that it means that the plaintiff was granted only 'a passage for a current of air'. We think the particular provision of the lease contains within itself a sufficient answer to the problem of construction with which we are faced. It seems obvious that something more than an easement in light and air was intended to be granted to the plaintiff, for otherwise the reservation of a right of ingress and egress, which necessarily must be over the surface of the land as well as through the air, would not have been necessary. The defendant thought it necessary to reserve the right of ingress and egress which of itself it tacit agreement that the plaintiff could have prevented it from entering the premises through the so-called 'airway'. Since the reservation is of the right to pass across the surface of the land, and since it is a limitation upon the right granted to the plaintiff it seems clear to us that the parties to the lease believed that the plaintiff had been granted a lease of the alley itself and not merely a right to the unobstructed flow of light and air. Any other construction would be too artificial to be accepted. Obviously, the plaintiff was intended to have access to the premises leased by it. What more reasonable conclusion can be reached than that such access was to be had through the existing alley which by reason of existing barriers was made to appear as a part of the premises on which the building to be leased was erected?

It seems to be the general rule that the extent of a granted easement is to be determined by a true construction of the language by which it is created. In so construing the grant, surrounding facts and circumstances which throw light on what the intention of the parties must have been

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are of great aid in resolving the question. 17 Am.Jur., Easements, § 97; 28 C.J.S., Easements, [33 Del.Ch. 120] § 26. In construing such grants, ambiguous or doubtful words will be construed in favor of the grantee. Matteodo v. Capaldi, 48 R.I. 312, 138 A. 38, 53 A.L.R. 550.

The existing facts at the time of the plaintiff's first lease in 1942, which also contained the language before us, and the subsequent actions of the parties confirm the conclusion that the above quoted provision of the lease was not intended by the parties as the grant of an easement in light and air only. In 1942, when the plaintiff first leased the premises the alley in question was in existence. It extended around two sides of the building. It was open at both ends, except for gates. There was an entrance to the building located in the southern half of the alley, and the alley was separated from other property to the east and south by barriers. The existence and extent of the alley in question was apparent from casual inspection. It also seems clear that in 1942 the sole possible use of the alley was in connection with the use of the building which was being leased by the plaintiff, since it was separated from the contiguous land by barriers. These circumstances, we think, make it clear that the alley in its entire length and breadth was an appurtenance of the leased premises. As such, it would ...

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