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KIRKHAM against SHARP.*

CASE STATED.

The owner of a large lot of ground situate on the east side of Fourth street, in the City of Philadelphia, granted to A. in fee a part of the same, being a lot 25 feet in front, and in depth about 100 feet: bounded east, by a brick stable, standing in the line of the lot; "together with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon a 4 feet 6 inches alley, extending in and about 45 feet from 4th street, to be forever left open between the lot hereby granted, and the house now occupied by B.," reserving a perpetual ground rent, with a covenant by A. to pay the same, and to build within a limited time a good three story brick house upon the lot thus granted to him. A. erected a house with back buildings, extending to the eastern boundary of the lot. Several years afterwards, C. purchased the whole of the large lot with the buildings on it, including that occupied by B., but excepting the house and lot belonging to A. The deed to C. described A.'s lot as being one of the boundaries, and contained the following clause, "Subject to the full and free privilege and authority of ingress, egress and regress, granted by, &c. (reciting the deed to A.) by, through, and upon a 4 feet 6 inches alley along side of the north line of (A's) lot, and extending in and about 45 feet from Fourth st. to be forever left open between (A.'s) said lot and the house included in this grant, formerly occupied by B." &c. There was an alley leading into Market street, and another passage into Fourth street, communicating with the stable yard. Held, that C. had no right to continue the 4 fect inches alley to the stable wall, and thence pass from the stable into Fourth street, along the alley on the north side of A.'s house.

THIS was an action on the case brought in this Court by William Kirkham against John Sharp, junior.

By agreement the following case was stated for the opinion and judgment of the Court.

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By indenture, bearing date the 20th day of April, 1767, Anthony Morris and wife granted and conveyed to John Litle and his heirs, a large lot of ground on the east side of Fourth street, between Market and Chesnut street, in the city of Philadelphia, with the easements and appurtenances therein mentioned. In this deed the lot was thus described;

"Beginning at Fourth street, at south corner of C. Brockden's lot, (1), E. along Brockden's lot 104 feet, to the extent thereof, (2,) N. along back end thereof 34 feet 4 inches, (3,) E. along end of lot formerly of said A. Morris, now Adam Eckart, to a 3 feet alley leading into Market street, (4.) S. along said alley 26 feet, to the end thereof, (5,) E. 3 feet to lot of Francis Allison, now Charles Thom

* For the report of this case, which was decided in 1832, I am indebted to the kindness of John Cadwalader, Esq.-REP.

(Kirkham v. Sharp.)

son, (6,) along said lot S. 179 feet 4 inches, to lot of John Martin, (7,) W. along Martin's lot 125 feet 8 inches, to Fourth street, (8,) N. along Fourth street 171 feet 6 inches, to beginning. Together with the use of the said 3 feet alley, leading into Market street."

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Francis Allison, now in the tenure of Charles Thomson.

By indenture, bearing date the 4th day of February, 1792, the said Litle and wife granted and conveyed to Robert Smock and his heirs, a part of the said large lot, with the easements and appurtenances therein mentioned.

Viz." A lot on the east side of Fourth street, between High and Chesnut streets, containing in front on Fourth street 25 feet, and in depth about 100 feet more or less. Bounded east by a brick stable standing in line of the lot, south by Litle's other ground, west by Fourth street, and north by ground now or late of Litle.

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Together also with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon, a four feet and six inches alley, extending in and about forty-five feet from Fourth street, to be forever left open between the lot hereby granted and the house now occupied by Miss Clinton; also, with the full and free privilege of the use of the pump of water being in the yard of the aforesaid house, and about on the line between the two lots." Reserving a ground rent, with a covenant of grantee to pay the rent, and within five years to build on the lot a good three story brick house.

The premises thereby granted and conveyed to Smock, and the easements and appurtenances then or since belonging to them, are now the property of the plaintiff, who holds them under Smock by a

(Kirkham v. Sharp.)

chain of conveyances. In the year, 1793, Smock erected upon the last mentioned premises, the three story brick dwelling, No 7, South Fourth street, with two story brick back-buildings, running eastward. These back buildings extend to and adjoin the wall of the stable mentioned in the deed to Smock. From the time of the erection of the house No. 7, until now, it has always been inhabited.

The said John Litle remained the owner and in possession of all the remainder of the premises granted and conveyed to him by Anthony Morris and wife, until the time of his death.

On the 21st day of December, 1827, by indenture bearing date that day, James Ross, administrator with the will annexed of the said John Litle, did grant and convey to John Sharp, the defendant, and John W. Downing, all the premises granted and conveyed by the said Anthony Morris and wife to the said John Litle, except that part conveyed to Smock in 1792, in the manner therein expressed. This conveyance was accepted by the defendant and Downing.

This deed reciting that Litle had died seised of the Indian Queen Hotel and messuages, and the lot thereto belonging, having first made his will, &c. directing his executors after his widow's death, to sell his real estate-that she and all the executors are dead, and the grantor administrator cum testamento annexo, pursuant to act of 12th March, 1800, conveys the premises according to the description in the deed of 1767, from Morris to Litle, to the end of the fifth course and distance, then proceeds with the description as follows" (6) along said lot south 179 feet 4 inches to a lot formerly of John Martin, now of said John Sharp, Junior, (7) west along same 50 feet 8 inches, to a strip 3 feet wide, conveyed by Litle on 4th February, 1768, to John Martin, (8) north, by east end of that strip 3 feet, (9) west, along north line of that strip 75 feet to Fourth street, (10) north by Fourth street, 116 feet 6 inches to " South line of a lot 25 feet wide, which the said John Litle, by deed dated the 4th day of February, A. D. 1792, sold and conveyed to one Robert Smock, now belonging to William Kirkham, thence eastwardly by the south line of Kirkham's said lot about 100 feet, more or less, to a brick stable included in this grant." (12) north by rear end of Kirkham's lot, 25 feet, (13) west, by north line of Kirkham's lot, about 100 feet, to Fourth street, (14) north, along east line of Fourth street, and bounding thereon about 25 feet 6 inches more or less, to beginning, Subject to the full and free privilege and authority of ingress, egress and regress, granted by the said John Litle, by the deed aforesaid, to the said Robert Smock, his heirs and assigns, by, through and upon a 4 feet 6 inches alley, along side of the north line of Kirkham's said lot, and extending in and about 45 feet from Fourth street, to be forever left open between Kirkham's said lot and the house included in this grant, formerly occupied by Miss Clinton, and now occupied by Mrs. Weeks, and also subject to

(Kirkham v. Sharp.)

the full and free privilege in the owners of Kirkham's said lot, of the use of the pump of water being in the yard of the last mentioned house, and about on a line between the two lots, and also granted by the said John Litle to the said Robert Smock, his heirs and assigns, by the deed aforesaid." This deed also recited, that the premises thereby granted and the strip sold by Litle to Martin, and the 25 feet lot sold by Litle to Smock, were the entire lot which Morris and wife conveyed to Litle, and conveyed the same," together with the full and free privilege and authority of ingress, egress and regress by, through and upon the aforesaid 3 feet wide alley, leading into High or Market street aforesaid." Habendum to grantees in common, in fee, in equal parts, subject to a paramount ground rent, and "to all the covenants made by the said John Litle to the said Robert Smock," in the deed of 4th February, 1792.

The premises granted and conveyed by James Ross to the defendant and John W. Downing, were, at the time of the conveyance from John Litle and wife, to Robert Smock, in the year 1792, used and occupied as follows, to wit:

On that part of the said premises which lie north of the lot of the plaintiff there was then erected a three story brick house on the front of the lot adjoining Fourth street, being the house No 5, south Fourth street, and in the rear of this house there were then erected back buildings which extended eastward to the said stable wall. The back buildings faced the back buildings of the plaintiff. This house, No. 5, is the same which is mentioned in the deed to Smock as being then occupied by Miss Clinton. It has been occupied ever since as a dwelling house.

That part of the premises which lies east of the lot occupied formerly by Miss Clinton, and east and south of the plaintiff's lot, was occupied as the Indian Queen tavern and its stables and appurtenances. The Indian Queen tavern stands, and did in 1792 stand on the south-western extremity of the lot granted and conveyed by Morris and wife to Litle; there was a dwelling house adjoining the tavern on the north; an archway, sufficiently large to admit carriages, was taken from the southern side of this last house and adjoining the said tavern, which archway led into the yard and to the stables of the said tavern and back of said stables to a vacant part of said larger lot used as a stable yard, of which this archway formed an outlet. The space of feet on Fourth street adjoining the plaintiff's house and lot on the south was vacant and not built on till the year

The other ground fronting on Fourth street was all built on at the date of the conveyance from Litle and wife to Smock. From the vacant part of the said larger lot back of the said stables there was an alley leading northwardly into Market street, which is still open, and is the same alley mentioned in the conveyance from Morris to Litle. The western wall of the stable beginning at about a

(Kirkham v. Sharp.)

foot northward of the north-east corner of the lot formerly occupied by Miss Clinton and running parallel to and about one hundred feet distant from Fourth street, extends southerly more than one hundred feet. From before the conveyance to Smock in 1792, until the autumn of 1828, there never was any door, window, light, or other opening of any sort in that part of the said wall which bounds the said premises No. 5, and No. 7. The wall prevented all access from that quarter to the premises of the plaintiff, or the premises occupied as aforesaid, by Miss Clinton. During this period, the only means of approach to either of these premises, was from the side of Fourth street.

From the conveyance to Smock in 1792, until the autumn of 1828, the alley leading into Fourth street, four and a half feet wide, by forty-five feet deep, mentioned in that conveyance, was always used uninterruptedly by the owners and occupiers of the said houses, No. 7, and No. 5, South Fourth street, for the purposes of those two houses respectively, and of the families inhabiting the same, as a footway, and for no other purpose, and during the whole of that period, was never used by any other person for any purpose. At the eastern end of the main building of each house, was a private gate leading into the alley. The alley extended no further back eastward than these gates, where it was stopt up by the fence of the said lot formerly occupied by Miss Clinton, which fence ran across the head of the alley four and a half feet, to the fence of the lot of No. 7, at the distance of about forty-five feet from Fourth street, and thence, the two fences being there united, and forming one division fence from the junction, ran eastwardly about fifty-five feet to the western wall of the said stable.

On and since the 1st day of October, 1828, the defendant has passed on foot, in, upon, over and across the said alley four and a half feet wide by forty-five feet, backward and forward to and from that part of the premises granted by Morris and wife to Litle, which lies easterly from the said stable wall, without the leave of the plaintiff, and has also passed with a horse, leading the said horse in, upon, over and across the same alley backward and forward, to and from that part of the said premises which lie east of the said stable wall, without leave of the plaintiff.

To enable himself thus to pass to and from said part of the premises which lie east of said stable wall, he lengthened the said alley four and a half feet wide by forty-five feet, by removing that part of the fence of the lot formerly occupied by Miss Clinton, which had previously stopped the alley on the eastward, and extending the fence from the gate of the lot formerly occupied by Miss Clinton, on the ground which was granted to defendant and John W. Downing, by James Ross aforesaid, parallel to, and four and a half feet equidistant from the former division fence, to said stable, then

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