Irwin v. Dixion,
50 U.S. 10 (1850)

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U.S. Supreme Court

Irwin v. Dixion, 50 U.S. 9 How. 10 10 (1850)

Irwin v. Dixion

50 U.S. (9 How.) 10


Where a right to a public highway is alleged to be violated, and a remedy is sought through an injunction, it is not issued, either at the instance of a public officer or private individual, unless there is danger of great, continued, and irreparable injury, and not issued at the instance of an individual, claiming under such public right, unless he has suffered some private, direct, and material damage beyond the public at large.

Where the remedy by injunction is sought for an injury to an individual, and not public right, it is necessary also that the right to raise the obstruction should not be in controversy, or have been settled at law. Otherwise, an injunction is not the appropriate remedy. Until the rights of the parties are settled by a trial at law, a temporary injunction only is issued to prevent an irremediable injury.

The principles examined which constitute a dedication of land to public uses.

This was a bill filed by the Dixions to restrain the appellant from erecting an enclosure in what they claimed to be a public highway in the Town of Alexandria, by which the said highway was obstructed, and the ancient lights of the appellees, looking into the said highway, were darkened, and for an abatement of the nuisance. The court granted a perpetual injunction defining the limits of the highway and requiring the appellant to remove the nuisance.

The material facts of the case were as follows. John Fitzgerald and Valentine Peers, on 25 April, 1778, received a conveyance of lot 51 in the Town of Alexandria, between which and the water of the Potomac River there was "sunken ground," which, on 17 September, 1778, was conveyed by William Ramsay and John Carlyle, in their own

Page 50 U. S. 11

right, and as trustees of the said town, to the said Fitzgerald and Peers. A portion of this land was built upon by them, and that portion which extends from King Street on the north, running with Union Street on the west to the center of an alley now called Dock Street, or Fitzgerald's Alley, and running to the Potomac River, with the building fronting on Union Street, was, by various deeds, transferred to and vested in Thomas Irwin, the father of the appellant. Thomas Irwin was in under his purchase in the year 1802, and continued so to his death, which happened in the month of January, 1827. By his will, he directed that all his estate should be equally divided between his children, when his son William the appellant should arrive at the age of twenty-one; in the meantime to be managed for their benefit, by his sons Thomas, James, and William.

A division of the estate was made on 15 January, 1835, by which there was assigned to James Irwin a warehouse, on the south side of King Street, and fronting the river; beginning on King Street, at the northeast corner of said warehouse, and running thence southwardly, with the east front of the same, to the center of the south wall, between which wall and the warehouse south of it by this deed allotted to Ann J. Carey is an alley or open space; then, with the center of said south wall, westwardly, to the east side of the east wall of a warehouse by this deed assigned to William H. Irwin; then northwardly, with the said east side of the said last-mentioned warehouse, and the east side of the warehouse hereby assigned to Mary Irwin, to King Street; thence eastwardly, on King Street, to the beginning: the said warehouse being part of a lot of ground conveyed to said Thomas Irwin, deceased, by William and J. C. Herbert, and by the devisees and trustee of John Dunlap. On 20 April, 1835, James Irwin conveyed all his real estate in the county of Alexandria to William L. Hodgson, to secure his brother, William H. Irwin. On 28 February, 1842, James Irwin, to secure the payment of certain debts therein mentioned, with the consent of William H. Irwin, conveys to John Hooff

"all his, the said James Irwin's, right, title, and interest in and to the warehouse situated at the foot of King Street, and then in the occupancy of John Howard, which property was conveyed to the said James Irwin by deed of partition between the heirs of the late Thomas Irwin, deceased, made and executed in the year 1831, and was afterwards conveyed in trust to the said Thomas Irwin, to secure his mother, Elizabeth, for what she had become responsible. Elizabeth Irwin also united in this

Page 50 U. S. 12

deed. James Irwin, having failed to pay the debts intended by the last-mentioned deed to be secured, the trustee, John Hooff, set up, pursuant to the deed, and sold the property to the appellees, who complied with the terms of sale, and Elizabeth Irwin thereupon united with Hooff in a conveyance of the property, describing it as fronting on the Potomac River."

James and William H. Irwin did not join in the execution of this deed.

The Dixions thus claimed to have all the estate, right, title, and interest of James Irwin in this property, and this was the foundation of their private right.

It further appeared from the record that at the time Thomas Irwin purchased the property, there was a large warehouse at the corner formed by Union and King Streets, and between that and the river was an open space or lot, extending along the line of King Street about ninety feet, to a dock at the foot of King Street. In the year 1804, he built the warehouse now owned by the Dixions, fronting on King Street and on the Potomac River. At one period of time, a very large trade was carried on in these premises, and for years the whole business of the house was transacted through the door in the east front, looking to the river.

The whole property on which the buildings stand forms nearly a square, the west side of which is on Union Street, the north on King Street, the south on a public alley, called Fitzgerald's Alley, and on the east was an open space running along the front of the buildings from King Street to, and passing beyond, this alley. This space is formed artificially, and made solid, and is upwards of forth feet in breadth before the wharves which project into the river, or the docks running by the side of the wharves to this open space, are reached. That part of the open space lying immediately adjacent to the eastern front of the Dixions' property was paved with brick to the width of about four feet, beyond which, and running along the line of this pavement from King Street to Fitzgerald's Alley, there is a passage for carts and passengers, which is commonly used, and has never been purposely obstructed since the erection of this house in 1804.

After the purchase by the Dixions of the said warehouse, the said William H. Irwin erected a wooden fence eight or ten feet high enclosing a space nearly twenty-five feet square, the north side of the enclosure embracing one of the windows on the ground floor in the east part of the building, and projecting eastward at right angles to the house, and then southward, and westward, and back to the wall of the other warehouse erected

Page 50 U. S. 13

by William Irwin, so that it impaired the access to the Dixions' house, and obstructed their lights, and also completely interrupted the passing along the footway, and greatly obstructed the use of the carriageway.

The Dixions filed their bill to restrain Irwin, and prevent his erecting this enclosure, and put their right on the ground of his darkening their ancient lights, and also that he was obstructing a public highway. The injunction was ordered and served. Irwin persisted in completing the erection, and they amended their bill, setting up distinctly that Thomas Irwin in his lifetime had dedicated to the public the use of that part of this open space covered by said enclosure, and the same had been used by the public as an open street and common highway, and the use of which had been consented to by all the persons interested in said property, and by the different owners of the fee simple of the lots of ground adjoining and bounding thereon, and by those heretofore claiming title to the said warehouse and lot now owned by the Dixions, and that the same had been used by the public as a common highway and open street for upwards of thirty years, for carriages, horses, wagons, and drays of every description, to pass, or stand upon to receive lading, and for doing business of merchandise, or other business.

The answer of William H. Irwin describes the fence erected as extending from a post near the Dixions' house, east 26 feet, then south 26 feet, then west 26 feet, about 10 feet high, but denies that it is erected on any public street or strand, or on land over which the public have any right of way.

And denies that it covers any part of complainant's window, and also denies that it diminishes in any perceptible degree the light passing through it.

That the fence is exclusively on a lot assigned by the deed of partition to James Irwin, W. H. Irwin, and A. I. Carey, in common -- the whole property consisting of five warehouses in a single block, the main building comprising three, resting on the west on Union Street, on the north on King Street, and on the south on Dock Alley, and the two wings extending east from the east side of the main building, with an open space between them, and of the wharf lot and pier, which commenced at the eastern walls of the two wings, and extended unto the river. By the deed of partition the northern wing was assigned to James Irwin, the southern wing to A. I. Carey, the middle open space, in connection with the middle warehouse of the main building, to W. H. Irwin, and the wharf lot and pier, or open space to the east, to the three in common -- on

Page 50 U. S. 14

which open space is the erection complained of, the Dixions having purchased the northern wing.

That this open space had been reclaimed from the river by artificial filling up, requiring constant repair -- was of a perishable quality -- had always been kept in repair exclusively by Thomas Irwin and his predecessors and heirs -- who had at all times openly and notoriously asserted their exclusive ownership over the lot by excluding people from it, by covering it with merchandise and by renting it especially to the tenant of the Dixions' warehouse to be used in connection with it.

That it had been kept open for the convenience of the owners solely, in connection with the wharf, and that the passage of people over it had been by leave and sufferance, and not as of right, but in subordination to the rights of the owner.

He denies positively all the allegations of the bill tending to show the dedication of that space, or any part of it, and also denies the existence of any street, strand, highway, or passway of any kind for the public over any part of the wharf lot.

He admits that the enclosure partially obstructs passage over said lot, but that there is still ample space for passage between the fence and wharf for every purpose.

He states that notice was given at the sale that only the building was sold -- no right existed beyond the wall -- but that the whole open space was private property.

That the interest of A. I. Carey in Thomas Irwin's estate was settled to her separate use prior to the partition by deed of 10 August, 1829; W. H. Irwin's interest in the warehouse and wharf lot and pier was settled to the separate use of his wife on her marriage in 1839; and that James Irwin had conveyed his warehouse and interest in the wharf lot to secure W. H. Irwin for certain debts still due to full value of property.

That he acted as agent of the owners in erecting the fence.

That an agreement referred to in and virtually forming part of the deed of partition expressly stipulates for the building on the open space by any two of the owners.

If any right be invaded, he denies that it causes such irreparable injury to complainants as entitles them to relief in equity, and avers that the remedy at law is adequate.

He suggests that "fronting the river" is matter of description, to distinguish the warehouse given to James Irwin from others, not giving it any right beyond the limits granted.

Much evidence was taken on both sides to show the use of the lot by the public and by the owner, the application of

Page 50 U. S. 15

which will appear by referring to the arguments of the respective counsel.

In October, 1846, the counsel for the defendant, Irwin, moved the court to award an issue to be sent for trial to the Circuit Court of the District of Columbia, on the common law side thereof, to ascertain whether the space of ground lying between the east end of the complainant's warehouse in the bill mentioned and the Potomac River, or any part thereof, had ever been dedicated by any fee simple owner thereof, as a highway, to the use of the public, or whether any, and what, part thereof had been so dedicated, and if any part thereof had been so dedicated, when the same was so dedicated.

But the said court overruled the said motion, and refused to award the said issue as prayed, or any issue relating to the dedication of the said space, or any part thereof. To which said refusal the defendant excepted and objected.

The cause then came on to be heard upon the original and amended bills of the complainants, the answer of the defendant, and the exhibits and proofs filed by the parties, when the circuit court passed the following decree:

"Being fully satisfied that Thomas Irwin, the ancestor of said defendant, did, in his lifetime, dedicate to the public use a highway passing along the eastern front of the said warehouse mentioned in said complainants' bill, and running from King Street to Dock Street, or Fitzgerald's Alley, in the Town of Alexandria, and that the same was used as a highway for many years before the filing of the said bill; that there was next to the said warehouse, and within the said highway, a footway about four feet wide, beyond and next to which was a highway for the passing and repassing of carts, carriages, drays, and horses, and the same was commonly used by all persons having occasion to use the same: and being further fully satisfied that the said defendant did, before the filing of the said bill, erect across the said highway a fence, which he has continued to this day, fully obstructing the passage along the said highway; that the said fence is immediately adjacent to the east wall of the said house, between two of the windows in the said east wall, and close to the frame of one of said windows; that the said fence was a special and material injury to the use and enjoyment of the said defendant's said warehouse, and is a continuing injury to the same, do, this 31 October, 1846, adjudge, order, and decree that the injunction heretofore issued in this cause be and the same is hereby made perpetual. And they do further order and direct that the said defendant do forthwith take down and remove the said fence, and that

Page 50 U. S. 16

he be, and he is hereby, forever hereafter, so long as the said footpath and highway shall be continued to be used as such, enjoined and prohibited from erecting or putting any obstruction in the said highway within the space of nineteen feet wide, measured east from the eastern wail of said warehouse of said complainants, and running from King Street to Dock Street, or Fitzgerald's Alley, as it is indifferently called and known, which said nineteen feet is hereby declared to be the eastern limit of said highway, and said highway does extend no farther east, and that the said defendant pay the costs of this suit, to be taxed by the clerk."

From this decree, Irwin appealed to this Court.

Page 50 U. S. 25

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