WOLFMAN et al.
JABLONSKI et al.
Suit to enjoin defendants from interfering with plaintiffs' alleged exclusive right to use a certain alley and alcove. The Chancery Court, Seitz, Chancellor, held that evidence was insufficient to show that defendants, whose right to use alley was derived from deed, had intended to abandon the alley, or that plaintiff had acquired title to the alcove by adverse possession for twenty years.
Order in accordance with opinion.
[34 Del.Ch. 68] Thomas H. Wingate, Wilmington, for plaintiffs.
Anthony F. Emory, Wilmington, for defendants.
Plaintiffs seek to enjoin defendants from interfering with plaintiffs' alleged exclusive right to use a certain alley and alcove.
Plaintiffs own real estate extending along the south side of Second Street from Market Street to Shipley Street in the City of Wilmington. Immediately south of plaintiffs' property and extending from Market to Shipley (a distance of about 117'7" ) is a three foot wide alley. The defendants' property abuts the alley on the south for the same distance. About 63 feet in the alley from Market Street, and running along the alley for about 30 feet, is an alcove extending into defendants' property to a depth of about 3 1/2 to 5 1/2 feet. It was formerly backed by a brick wall and contained a privy. The wall was torn down by defendants in connection with the present dispute over the right to use the alley.
It appears that plaintiffs have record title to the alley to a depth of about 101'1" from Market Street. It does not appear that plaintiffs have title to the remaining 16'6" of the alley. Defendants do not claim title to any portion of the alley. However, in the early nineteenth [34 Del.Ch. 69] century both plaintiffs' and defendants' predecessors in title obtained a use in common to a 28 foot alley leading in from Market Street. It is part of the present alley. Both plaintiffs' and defendants' predecessors in title were also granted a right in common to use a 16'6" alley leading in from Shipley Street, also part of the present alley. Apparently in later years the alleys became connected by the use of the center portion for that purpose.
Defendants claim the right to use the two indicated portions of the alley on the basis of the users granted by deed. They claim the right to use the balance by prescription. Plaintiffs contend that whether defendants' use was formerly based on grant or prescription, defendants and their predecessors in title lost the right to use the alley through abandonment.
Plaintiffs claim title to the land in the so-called alcove based upon adverse possession.
I first consider whether defendants' right to use the alley has been lost through abandonment. The parties seem to be in general agreement on the law and the dispute is entirely one of fact. Therefore, conceding, as do plaintiffs, that defendants' predecessors in title had the
right at one time either by grant or prescription to use the entire alley, the question is whether that right was legally abandoned. Whether or not a right of user has been abandoned is a question of intention and non-user is a fact to be considered in resolving that question. Also where, as here, the easement has been acquired by grant mere non-user alone does not operate as an abandonment. Plaintiffs appear to tacitly agree that I should apply this principle to the entire alley. If I have misconstrued their position they may so indicate on a motion for reargument. Thus I must here find not only non-user but acts clearly indicating an intention to abandon the use of the entire alley.
Plaintiffs assert and defendants deny that the credible evidence demonstrates both the non-user and other circumstances evidencing an intention to abandon the right to ...