John F. BETLEY and Alice M. Betley, his wife, Plaintiffs,
GORDY CONSTRUCTION COMPANY, a corporation of the State of Delaware, and Llangollen Club, Inc., a corporation of the State of Delaware, Defendants.
Suit, by owners of two parcels of land separated by boulevard leading to suburban development, for mandatory injunction directing removal of trees planted along boulevard, so that they might have full access to parcels. The Court of Chancery, Seitz, Chancellor, held that evidence established that plaintiffs' grantor, who had also owned land comprising boulevard and which was described in deeds as ‘ new street’, intended that plaintiffs were to have easement to it.
Order in accordance with opinion.
[35 Del.Ch. 254] Charles L. Paruszewski, Wilmington, for plaintiffs.
Albert W. James, of Morris, James, Hitchens & Williams, Wilmington, for defendant, Gordy Construction Co.
Rodney M. Layton of Richards, Layton & Finger, Wilmington, for defendant, Llangollen Club, Inc.
Plaintiffs seek a mandatory injunction directing the removal of certain trees, shrubs and walls interfering with an alleged easement from their property to the street.
Plaintiffs own two parcels of land on the easterly side of Dupont Boulevard. These
parcels are divided by a street now known as Llangollen Boulevard. This Boulevard extends easterly from the Dupont Boulevard for a distance of about 560 feet before entering Llangollen Estates-a suburban development ‘ back’ of plaintiffs' properties. The Boulevard is 70 feet wide for the distance which it abuts plaintiffs' land.
Defendant Gordy Construction Company (‘ Gordy’ ) is admittedly the owner of the fee of the bed of Llangollen Boulevard and is the developer of Llangollen Estates. The 30 feet center of the Boulevard is paved and guttered and has been accepted for maintenance by the State Highway Department. In the spring of 1949, Gordy as part of its process of developing Llangollen Estates planted about $7,000 worth of evergreens and shrubbery on both outer 20 feet strips of the Boulevard but within the bed of the 70 feet wide ‘ street’ . The evergreens were planted at close intervals and staggered. Since their planting the evergreens have grown to as much as 12 feet. The [35 Del.Ch. 255] balance of the non-paved plot is planted in grass. Having viewed the property in question I can state that as matters now stand it is not possible to gain access to plaintiffs' land from the Boulevard by vehicle.
Gordy also erected at the Dupont Boulevard entrance to Llangollen Boulevard two rounded stone walls on the 20 feet strips on either side at a cost of $3500. Each of the stone walls is about 15 feet long, 24 inches wide and 8 feet high but tapering downward.
Defendant Llangollen Club, Inc. (‘ Club’ ) is a civic organization which is presently maintaining the evergreens and the walls.
Plaintiffs seek to enjoin any interference with their alleged easement over the Boulevard for the purpose of entering and leaving their abutting properties. In aid of this objective they also seek a mandatory injunction directing the removal of the evergreen trees and/or shrubbery and the two stone walls erected at the entrance to the Boulevard.
Originally, all the land owned by plaintiffs as well as the bed of Llangollen Boulevard and Llangollen Estates was owned by Henry S. McComb. His heirs, devisees and legal representatives continued to own the land until 1925 when they conveyed the portion now owned by plaintiffs to John Baxter and wife. In describing parcel No. 1 the deed used as a reference ‘ the southwesterly side of a 70 feet wide street newly established’ . The deed to the second parcel used as a reference ‘ the said northeasterly side of the first mentioned newly established 70 ...