Franklin B. BIGGS, Plaintiff,
Johanna G. WOLFE, Diston M. Carter, John A. Lucas, Effie A. Lucas, Edgar S. Carrow, Gilbert Carrow, Charles Stapleford, and Alice M. Stapleford, Defendants.
[40 Del.Ch. 213] George T. Coulson and David C. Rittenhouse, of Morris, Nichols, Arsht & Tunnell, Wilmington, for plaintiff.
Samuel Handloff, Wilmington, for defendants Johanna G. Wolfe and Diston M. Carter.
Plaintiff is the owner of a tract of farm land, known as 'Monterey Farm,' situate in Red Lion Hundred, New Castle County, Delaware, containing approximately 357 acres. The deeds in plaintiff's clain of title describe Monterey farm by courses and distances and following the description thereof each of said deeds contain the following:
'TOGETHER also with a strip of land for the purpose of a road or lane to extend from said farm hereby conveyed across the farm of Margaret A. Osborne known as 'Idalia Manor' to the main state road, the same to be thirty feet in width and one hundred and sixty-one perches in length said strip to extend from the end of the third line in the above description of 'Monterey' along the Northerly line of 'Idalia Manor' in part [40 Del.Ch. 214] with the fourth line of the above description of 'Monterey' and with line of land late of James C. Howe, Deceased, and to terminate at the public road leading from St. Georges to Odessa.'
Defendants own or reside upon lands adjacent to the strip of land (Cann Road) above described. Plaintiff brings this action seeking a decree of this court declaring that he is the owner in fee simple of the strip of land described, and for an injunction to restrain the defendants from using said strip of land without plaintiff's permission. He claims ownership of the strip of land by (1) the express provisions of the deeds under which he claims, or, in the alternative, (2) adverse possession. Defendants Wolfe and Carter neither admit nor deny plaintiff's ownership of the strip of land. They say that it is immaterial whether the grant to plaintiff is of a fee or merely a right-of-way. They defend on the ground (1) that Cann Road is a public road and (2) that they have acquired a prescriptive right to the use thereof.
I am satisfied that the language of the deeds under which plaintiff claims conveyed to the grantees therein named a fee simple title in the strip of land therein described and not merely a right-of-way, or easement. The great weight of authority holds that in the absence of an indication of a contrary intention, a conveyance of a strip, piece or parcel of land is to be construed as passing a title in fee simple, and that a statement of the contemplated use thereof is not indicative of such a contrary intention. Rowell v. Gulf, M. & O. R. Co., 248 Ala. 463, 28 So.2d 209; Vail v. Long Island R. Co. 106 N.Y. 283, 12 N.E. 607, 60 Am.Rep. 449; Cooper v. Selig, 48 Cal.App. 228, 191 P. 983; Midland Valley R. Co. v. Arrow Indus. Mfg. Co. (Okl.), 297 P.2d 410; Robb v. Atlantic Coast Line Ry. Co. (Fla.App.), 117 So.2d 534. Plaintiff is, therefore, entitled to an adjudication declaring him to be the owner in fee simple of Cann Road. Since he is the owner by virtue of the express language of his deed, it is unnecessary to consider
plaintiff's contention that he is the owner by adverse possession.
Defendant contends that Cann Road is a public road. I do not believe that the evidence supports this contention. There is no claim by defendant that any owner of Monterey Farm ever expressly [40 Del.Ch. 215] dedicated Cann Road to the public use. In fact, defendant does not seem to make any such contention. In these circumstances defendant must rely upon a dedication by inference from user and acceptance thereof either by public authority or by public use. Defendant's testimony tends to show that on one occasion many years ago county employees were observed scraping the road, and on another occasion about thirty years ago county employees removed snow from the road. These isolated instances of public work upon the road are hardly sufficient to indicate an acceptance by public authority. Compare, Carson v. Brady, 329 Mass. 36, 106 N.E.2d 1. Especially is this true when there is no evidence that the persons so working on the road did so pursuant to instructions of their superiors. It may well be, as suggested by plaintiff, that the work was done as a personal favor to defendant Wolfe or her predecessors.
The testimony as to use by the public is not, in my opinion, of the type which the law requires in order to imply a dedication. Several witnesses testified that they made use of the road, without objection, many years ago. The nature and extent of their use is not at all clear. From their testimony I think it fair to say that the use made by them was incidental and infrequent. Other witnesses testified that they rented what is now the Wolfe property for farming purposes and crossed over the road from lands upon which they resided in order to reach the Wolfe land. They also, upon occasion, used the road to transport crops from that portion of the Wolfe lands adjacent thereto to the public road. They testified that though there were other ways of egress from the Wolfe lands to the public highway it was, at times, more convenient to remove crops by way of the road. There was also testimony that plaintiff's son, when a boy, rode his horse on the road and that hunters occasionally travelled thereon. Certainly these uses made of the road were not such as ordinarily appear in a case wherein a party seeks to establish a dedication from user. The purposes of use were limited and were of the kind which one would associate with the use of a private road by neighboring farmers. I find that Cann Road was not a public road as contended by defendant. In view of this finding I am not called upon to consider plaintiff's contention that Cann Road is not to be regarded as a public [40 Del.Ch. 216] road because it does not appear that it has been maintained at the public charge for twenty years or more, which plaintiff says is required by 17 Del.C. § 509.
Defendant also contends that she and her grantees have a prescriptive right to the use of Cann Road. While the evidence adduced by defendant is not sufficient to establish a dedication of the road for public use, nevertheless, I am of the opinion that it is sufficient to establish an easement in the defendant for the uses pursuant to which it was acquired. The testimony discloses that the road was used by defendant Wolfe and her father to reach the fields of their farm which were distant from the public road, and that their tenants used the same road to reach such fields and to remove crops therefrom. These uses were made without the permission of the owner of Monterey Farm and were of sufficient frequency to put the owner upon notice of the use and the claimed right thereto. While the use made was not as frequent or as indispensible as that involved in Gallagher v. Williams, 36 Del.Ch. 310, 129 A.2d 554, I regard that case as in point to the present.
But the fact that defendant Wolfe has acquired a prescriptive right in Cann Road does not mean that that right may now be exercised for any and all purposes. The use of a way acquired by prescription is limited to the user by which the right was
created. 28 C.J.S. Easements § 89, p. 769. A prescriptive right acquired by a particular user does not justify a materially greater user which has not been enjoyed for the full prescriptive period. 17 Am.Jur. 725. In the present case, the fair import of the evidence relating to user by the defendant Wolfe, her predecessors in title and her tenants is that the use made by these persons of Cann Road was for agricultural purposes. Defendant Wolfe and her predecessors appear to have used the road only as a means to go from the fore part of the Wolfe property to the back fields thereof and not as a means of ingress from and egress to the public road. So far as the tenants of the farm are concerned, it is quite clear that the only use which they made of the road was to cross it in order to get to portions of the Wolfe land which they had under cultivation and to remove crops therefrom. The testimony discloses that defendant Wolfe has recently subdivided a [40 Del.Ch. 217] portion of her lands and sold lots for building purposes. Defendant Carter is a purchaser of one of these lots and is now using the road as a means of ingress and egress to and from his property, that is, as a driveway. Plaintiff says that even though a right of user has been acquired by defendant Wolfe, nevertheless, the use now being made of the road by said defendant and the grantees of her building lots is a use not permitted by her easement. While there seems to be a tendency on the part of courts to allow a reasonable variation between uses made under a prescriptive easement and the adverse use by which it was created, it has been quite uniformly held that where the attempted use is not reasonably related to the user under which the right was acquired such attempted enlargement of use will not be ...