MONAMARA and others 1;. GARRITY and others.1

(Supreme Judicial Court of Marine. November 9, 1886.)

ARREST—ON MESNE PROCESS—AFFIDAVIT—REV. ST. ME. CH. 113. § 2. To justify the arrest, on mesne process, of one of two joint debtors. the affidavit is sufficient, though it contain the pronoun in the plural instead of the singular form.

On exceptions by defendants from superior court, Kennebec county.

This is an action of debt on poor debtors’ bond, purporting to be given in accordance with chapter 113, § 15, of the Revised Statutes. The defendants introduced in evidence the affidavit attached to the original writ, which was as follows:

“HALLOWELL, September 6, 1883.

“State of Maine, K ennebee—ss. : Then personally appeared Herbert Blake, attorney, the within-named creditor, and made oath that he has reason to believe and does believe that the within-named debtors are about to depart and reside beyond the limits of the state, and take with them property or means of their own exceeding the amount required for their immediate support, and that the demand sued for, or the principal part thereof, amounting to at least ten dollars, is due to the within-named creditor.

“HERBERT BLAKE, Attorney for Creditor.”

This was duly sworn to.

The defendants, by their attorney, requested the justice presiding to rule, as a matter of law, that said affidavit was insufficient in law to anthorize the sheriff, under the request of plaintiffs, to arrest the defendant, Garrity, in the original suit, because the plural form was used. The requested ruling was refused, and the presiding justice ruled that said affidavit was sufficient in law to authorize the arrest Of said Garr'ity, by virtue of which the instrument purporting to be a. bond was given. To this ruling the defendants excepted.

H. M. Heath, for plaintiffs.

Loring Farr, for defendants.

VIRGIN, J. Of the several questions raised by the bill of exceptions the only one relied on and argued by the defendant’s counsel relates to the sufficiency of the affidavit, wherein the plural forms of the pronouns were used, although only one of the debtors was arrested. In 1851 the same question was raised, but the court considered it too technical, and adjudged the affidavit sufficient. Stare decisis. Gates v. Noble, 33 Me. 258.

Exceptions overruled.

PETERS, C. J ., DANFORTH, LIBBEY, FOSTER, and HASKELL, J J ., concurred.

1Reported by Leslie 0. Cornish, Esq., of the Augusta bar.

SCHAIDT v. BLAUL.
(Court of Appeals of Maryland. November 18, 1886.)

1. WAYS—PRIVATE WAY—OBSTRUCTION OF—INJUNCTION.

Where plaintiflf is engaged in a business requiring access to a certain creek, and is the owner of a right of way thereto through an alley, the obstruction of said way by the defendant, by erecting a permanent structure across the entire width of the alley except.three feet, is such a wrongful act as equity will rest-rain by injunction.

2. SAME—EQUITABLE ESTOPPEL—ENCBOACHMENT BY PLAINTIFF. In an action to enjoin defendant from obstructing an alley-way the plaintifl’ will not be estopped from claiming an easement for a right of way through such alley by the fact that he has himself encroached upon the alley-way.1

8. SAME—PLAINTIFF ALLOWING Ons'rnuo'rron.

A plaintiff who allows defendant to erect a building across his right of way without asserting his claim is not thereby estopped from subsequentliy bringing suit to have the obstruction removed, where it is shown that defen ant had full knowledge of plaintiff’s claim to the right of way, and knew he did not intend to relinquish it. _ ~

Appeal from the circuit court for Allegany county. Decree for plaintiff. Defendant appeals.

In equity. Injunction to restrain obstruction of right of way.

R. T. Semmes, for appellant.

James A. McHenry and D. J. Blackiston, for appellee.

BRYAN, J. The circuit court for Allegany county, sitting in equity, passed a decree by which the appellant was required to remove certain obstructions from an alley, and was perpetually enjoined from erecting others. The bill of complaint was filed by Frank A. Blaul, and it charged that he was the owner in fee of a lot of ground on the west side of North Mechanic street, in the town of Cumberland, and that Caspar Schaidt was in possession of another lot on said street, and claimed title thereto under conveyances from William Wright’s heirs, under whom the complainant also claimed title. It was also charged that between these two lots there was an alley 12 feet wide, which led from Mechanic street to Wills creek, and that at the time the complainant became seized and possessed of his lot, and for more than 20 years previously thereto, this alley had been unobstructed. It was further charged that, by virtue of four several conveyances, (of which copies are filed,) a right of way in, through, and over said alley was vested in the complainant in perpetuity. All these allegations are distinctly admitted in the answer. It will be seen that the admissions comprehend, not only matters of fact, but also the construction which the complainant puts on the deeds, which are exhibited with the bill of complaint. _

Before we state our opinion, it will relieve the case of some embarrass— ment if we consider the effect and operation of these deeds. On the eighth of January, 1886, Josiah Englar, executor of William Wright, deceased, conveyed to Christian Pfizenmaier, in fee, the lot now owned by Schaidt. The deed of conveyance, which is executed both by Englar as executor and by Pfizenmaier, contains the following passage:

“And the said Christian Pfizenmaier, in pursuance of a verbal agreement to that efl'ect made at the time of said sale, doth hereby grant unto the owners or owner, and their heirs and assigns, of the brick house, and curtilage adjoining the property hereby conveyed on the west side thereof, now in the occupancy of Josiah Englar, a right of way in perpetuity through the alley as it now stands, which divides the property above conveyed from said brick house. "

On the twenty-third of January, 1879, this lot was conveyed by Pfizenmaier and his Wife to Schaidt in fee. This deed contains the following passage: _

“And the said Pfizenmaier, in pursuance of a verbal agreement to the effect, made at the time of the sale-of said lot to him, doth hereby grant unto the owner or owners, and their heirs and assigns, of the brick house, and curtilage adjoining the property hereby conveyed on the west side thereof, now in the occupancy of Matthias Y. Rabold, a right of way in perpetuity through the alley as it now stands, which divides the property above-granted from said brick house.”

The grant of the right of way is stated to be made to persons who are designated as ‘the owner or owners of a certain brick house and curtilage. By the common law it was not necessary that the name of the grantee should be inserted in a deed, provided he was described with sufficient certainty to distinguish him from all other persons. If a grant were made to 'the earl of Essex, or to the duke of Norfolk, without other description, it was good; because there could not be two persons at the same time holding either of these titles, and therefore the identification of the grantee would be complete. And probably to describe a grantee as heir of John Thompson [a deceased person] would be sufficient, inasmuch as the character of heir would show the person intended with sufficient certainty. But the ownership of a house is a casual circumstance, which is liable to change from time to time, and does not impress upon an individual any permanent characteristic by which he may be identified. We cannot, therefore, hold that such a description is sufiicient to enable any one to claim as grantee in a deed; and we might probably go further, and say that the proper construction of the ninth section of article ‘24 of the Code requires that the name of the grantee should always be set forth in the deed. Certainly such a construction would be in harmony with the spirit of the registration acts, which are founded on the policy of requiring that every circumstance should appear on the face of the registry which is necessary to the devolution of the title to real estate. But, although there was no grant of the right of way to any one by these deeds, some effect must be given to the words in question. Although they do not convey the right of way to the owners of the brick house, it is very certain that they restrict and diminish the interest conveyed to the grantee in these two deeds. The right of way is excepted out of the interest conveyed, and a declaration is made, in substance, that it is for the benefit of the owners of the brick house. On the second day of May, 1868, Kennedy H. Butler and wife conveyed to John and Matthias Rabold in fee a portion of the lot now occupied and owned by the complainant. In this deed we find these words: “Reserving, nevertheless, in, through, and over the alley, now open, and binding on the easterly side of that part of said lot hereby granted, a right of way in perpetuity, in common with the owner and occupiers of that part of same lot binding on the easterly side of said alley directly opposite to the part of same lot hereby granted to the said John Rabold and Matthias Y. Rabold,

their heirs and assigns; said alley leading from Mechanic street to Wills creek aforesaid . ”

These words evidently show that it was the opinion of the grantors that they could grant a right of way over the alley in question. If they had any such right, the words used were not appropriate to the purpose of conveying it. The alley was not within the limits of the property which they conveyed, and they undertook to reserve a right of way over it in common with the owners of the adjoining lot. The language used is most inapt and untechnical. In Shep. Touch. 80, it is said:

“A reservation is a clause of a deed whereby the feofior, donor, lessor, grantor, etc., doth reserve some new thing to himself out of that which he granted before. * * * This doth diifer from an exception, which is ever of part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created or reserved out of a thing demised, that was not in esse before; so that this doth always reserve that which was not before, or abridge the tenure of that which was not before. * * * It must be of some other thing, issuing or coming out of the thing granted, and not a part of the thing itself, nor of some thing issuing out of another thing. * * * It must be to one of the grantors, and not to a stranger to the deed.”

And Lord COKE, in the Commentary on Littleton, 47a, says:

“Note a diversity between an exception, which is ever of part of the thing granted, and of a thing in esse, for which, eweeptis, salvo, praater, and the like he apt words; and a reservation which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised. ”

The words of the deed which we have quoted cannot take effect either as a reservation or a grant. They, however, clearly describe the alley in question, and denote it as existing for the benefit of the owners of the lots binding on it. In March, 1880, Matthias Rabold and others conveyed this last-mentioned lot, together with other land, to Blaul, the complainant. In this last deed no mention whatever is made of the alley. If, however, it were appurtenant to the lot granted, it would pass as an incident to the principal estate without special mention.

As it is averred in the bill, and admitted in the answer, that the complainant claims under \Villiam VVright’s heirs, there is probably a deed from them conveying the property to Kennedy Butler; and it may be that this deed contains the original grant of the right of way, or it may be that a right of way for the benefit of the owners of this lot has been gained by prescription. A prescriptive right would be consistent with the language already quoted from the deeds, which refer to the alley as designated and existing. The record does not furnish us with the means of determining whether either of these suppositions is correct. But it does show unequivocally that the com plainant‘s right of way is fully conceded; and, although the parties have made a mistake in referring its origin to the deeds exhibited with the bill of complaint, we must give effect to their admissions, and we cannot make a controversy for them over this matter when they have stated that they have none with each other.

The bill of complaint, after making the averments which have been mentioned, states that the complainant is engaged in the butchering business on a large scale, and requires large quantities of ice in his business; that his iceis always gathered from Wills creek, and that his only means of getting to and from said creek is through the alley, and that it is indispensable to him for the purposes of his business; that the defendant has obstructed it by building a massive stone wall at the edge of the creek, and is in the act of building a stable in front of the wall, which will extend across the entire width of the alley, with the exception of three feet; that these obstructions destroy the complainant’s right of way, and completely deprive him of the use and benefit of the alley, and will materially decrease the value of his property, and work irreparable injury to him. The evidence clearly shows that access to the creek through the alley was a material, useful, and valuable convenience to the complainant in the transaction of his business; and that the obstructions made by the wall and stable deprive him of all beneficial use of the right of way for this purpose. He is prevented from using the alley in the accustomed and most advantageous mode. In the language of the authorities this obstruction “reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed.” It has been long settled that such a wrongful act will be enjoined in equity. White v. Flanigain, 1 Md. 525; Shipley v. Ritter, 7 Md. 408; and many other cases.

It is alleged in the answer that, previously to this obstruction, the complainant had made a considerable encroachment on the alley, and it is maintained that he is therefore estopped from making any claim for relief in equity against the defendant on account of his trespass. The complainant is answerable for whatever injury he may have done to the defendant’s right of property; but we cannot hold that an encroachment made by him will forfeit his easement, or take away any of his means of redress for an interference with it.

Another ground of defense set up in the answer is that the complainant well knew that the defendant was building the wall in question, and made no objection to it, but stood by and acquiesced in the expenditure of large sums of money by the defendant in the construction of it without a complaint of any character until after it was completed. Hereupon it is maintained that the complainant is estopped to allege that the erection of the wall is in violation of his rights. No doubt there are many cases where the conscience of a party is bound by an equitable estoppel, and rights may be forfeited by such conduct as would make it against conscience to assert them. Where a man knowingly suffers another to make expenditures on land under an erroneous opinion of his title, and does not make his own claim knoWn, just considerations re