RIVAS & RIVAS, INC., a corporation of the State of Delaware, Robert G. Correll and Betty W. Correll, his wife, Eugene C. Pajewski and Mary E. Pajewski, his wife, Richard P. Smith and Dorothy G. Smith, his wife, and Frederick W. Hartmann and Mary N. Hartmann, his wife, Plaintiffs,
RIVER ROAD SWIMMING CLUB, a corporation of the State of Delaware, Defendant.
[40 Del.Ch. 250] Walter P. McEvilly, of Killoran & Van Brunt, Wilmington, for plaintiffs.
John T. Gallagher, of Herrmann, Bayard, Brill & Gallagher, Wilmington, for defendant.
SHORT, Vice Chancellor.
In this action plaintiffs seek an injunction restraining defendant from obstructing and interfering with plaintiffs alleged rights to use a portion of a certain street for roadway purposes. They also seek a mandatory injunction requiring defendant to remove certain obstructions from the bed of said street. The theory of plaintiffs cause of action is twofold: (1) That plaintiffs, by express grant, have an easement 'of way, use and privilege' of all streets and avenues in the development known as 'Gordon Heights', and (2) that all streets and avenues in Gordon Heights have been dedicated and accepted a public roads. Defendant claims ownership of the parcel of land in dispute, denies that plaintiffs have a right-of-way thereover, and contends that, in any event, plaintiffs are barred from seeking the relief prayed for in the complaint under the doctrine of unclean hands, [40 Del.Ch. 251] waiver and estoppel. Motions for summary judgment have been filed by both parties and the matter is now before the court on the pleadings, affidavits and briefs filed. This is the decision on these motions.
The record tends to establish the following facts: By deed dated December 21, 1889 William Beadenkopf acquired title to a tract of land containing 144 acres, more or less, in New Castle County, Delaware. This tract comprised what is now known as Gordon Heights. At some time following the acquisition of title by Beadenkopf a plot of Gordon Heights was filed in the Office of the Recorder of Deeds for New Castle County and was entered in Deed Record F, Vol. 16, page 601. This plot has since disappeared from the records in the Recorder's Office, the circumstances of its disappearance and the time thereof being unknown. Reference to the missing plot is made in several deeds by Beadenkopf and others, commencing in 1892. In 1912 a plot entitled 'Gordon Heights' was prepared by Francis A. Price, surveyor, which plot was recorded on March 21, 1934 in Deed Book G, Vol. 37, page 601. In this plot reference is made to the earlier and now missing plot. While there is some uncertainty as to the circumstances under
which the 1912 plot was made and subsequently recorded, I think it fair to say that this plot was prepared by Price at the request of one MacNair, an officer of Hillcrest Realty Company, a subsequent owner of a portion of Gordon Heights, for the purpose of subdividing certain of the lands of Hillcrest Realty Company. This plot purports to lay out in blocks, streets, avenues and roads the entire area of Gordon Heights, and subdivides the blocks of Hillcrest Realty Company into lots. It purportedly shows the owners of certain blocks and lots. It designates the streets, avenues and roads by name, by courses and distances, and by width. The triangular area which is the subject of this controversy is designated on said plot as that part of Haines Avenue which begins at the angle formed by the intersection thereof with the southerly side of River Road and the easterly side of Eighth Street, then in an easterly direction along the southerly side of River Road and across the bed of Haines Avenue to the northwest corner of the intersection of Haines Avenue and Seventh Street, then in a southerly direction with the westerly side of Seventh Street across the bed of Haines Avenue to [40 Del.Ch. 252] the southwest corner of the intersection of Seventh Street and Haines Avenue, then in a westerly direction with the southerly edge of Haines Avenue to the point of beginning.
On February 7, 1918 William Beadenkopf and others executed and delivered a deed to Spring Hill Light and Water Company conveying title to the streets and avenues as shown on the plot now missing, excepting, however, streets lying southeast of River Road and northeast of Lore Avenue.  This conveyance contained the following language: 'Subject, However, to the right of way of individual owners of land in Gordon Heights, including the rights of the respective Grantors herein (if any they have), or the general public in and to the streets, avenues and ways aforesaid.' On March 20, 1934 the Spring Hill Company, grantee of Spring Hill Light and Water Company, deeded said streets and avenues to the Mayor and Council of Wilmington. The deed made specific reference to the missing plot. It was also made expressly subject to the rights of individual land owners in Gordon Heights and the general public in said streets and avenues. No conveyance of the streets and avenues here material has since been made by the Mayor and Council of Wilmington.
Plaintiffs trace their title through mesne conveyances from William Beadenkopf. The first of these is a deed by Beadenkopf and wife to May A. Clark dated July 20, 1892. This deed referred to the missing plot. It and subsequent conveyances in plaintiffs' chain expressly granted easements to the use of all streets and avenues in Gordon Heights.
The immediate deed to plaintiff Rivas & Rivas, Inc., (hereinafter Rivas) dated June 27, 1959, expressly excepted the beds of streets 'as laid out on the Plan of Gordon Heights' and also expressly granted the right of way, use and privilege of said streets. The other plaintiffs herein derived tilte through plaintiff Rivas & Rivas, Inc.
[40 Del.Ch. 253] Defendant acquired title to 'Lots Nos. 196 to 216 inclusive on the plot plan of Gordon Heights' by deed of Euclid, Inc. dated October 2, 1958. On that date the only 'plot plan' appearing in the records which showed lots numbers 196 to 216 was the plot G-37-601. Defendant's title to the lots named is traceable by mesne conveyances to William Beadenkopf, who conveyed a tract, including such lots, to Charles M. Townsend by deed dated July
20, 1901. The deed of Euclid, Inc. to defendant, in addition to conveying the numbered lots therein mentioned, purports to convey the triangular parcel of land which is the subject matter of this action and in which plaintiffs claim a right of way. There is no prior deed in defendant's chain of title which pretends to expressly convey the parcel in dispute. Euclid, Inc. acquired title by deed of Hillcrest Realty Company, which deed describes lots Nos. 197 to 216 inclusive as bordering on the southerly side of Haines Avenue. Hillcrest Realty Company acquired title by deed of Suburban Land Company dated April 9, 1909. This deed contains the following language: 'Excepting thereout the beds of all Avenues and Streets but expressly including the right of way, use and privilege of all the Avenues and Streets of Gordon Heights.'
The parties agree that prior to defendant's construction of a swimming pool on the lots described in its deed and surfacing of the parcel in dispute, the whole area described in plaintiffs' and defendant's deeds, including Haines Avenue between Eighth and Fourth Streets and other streets designated on the plot G-37-601, was in a natural, wooded and unimproved state, with the exception of certain footpaths. There were no physical markers of the streets mentioned, nor any evidence of the use thereof as streets or ways. Following the acquisition of title to lots Nos. 197 to 216 inclusive, defendant proceeded to have the same cleared and constructed its swimming pool. It also cleared the disputed land and surfaced the bed thereof for a parking area for its members and guests. Certain plans drawn in connection with contracts let by defendant show the disputed area as Haines Avenue, or Haines Avenue Extended. Construction of the pool and parking area was completed at the end of May 1959.
On June 27, 1959, plaintiff Rivas acquired a tract of land in Gordon Heights consisting of three blocks of lots on the southerly [40 Del.Ch. 254] side of Haines Avenue extending from Fourth to Seventh Streets. Thereafter, plaintiff Rivas commenced clearing this land including the bed of Haines Avenue from Fourth to Seventh Streets. When the lands had been cleared Rivas began the construction of dwelling houses and entered into agreements for the installation of water mains and lines, sewers and road paving for certain streets, including Haines Avenue. These agreements call for the extension of water and sewer lines which had been laid beneath the bed of Haines Avenue at some time prior to the acquisition by defendant of its lands. The improvements of Haines Avenue between Fourth and Seventh Streets was made in accordance with State Highway Department specifications and Haines Avenue was accepted for maintenance by the State Highway Department on December 9, 1960. On May 18, 1960 defendant wrote to plaintiff Rivas indicating its intent to close off access to Rivas' property by way of Haines Avenue between River ...