Opinion
02-25-1819
Brooke v. Barton
An agreement under seal was entered into, on the 28th of June 1804, between Seth Barton and Francis T. Brooke, by which the former covenanted to make to the later, " a good, legal and quiet title, in and to six lots or parcels of land, numbered 5, 6, 23, 24, 25, and 26, in the plat made by Bartholomew Fuller, extending the Streets of Fredericksburg, according to the said plat, including the use of the Streets and appurtenances therein mentioned, to the said Francis T. Brooke, his heirs and assigns forever, in the same degree and manner as if the said lots and streets were a part of the town of Fredericksburg, on which they bind."
In pursuance of this agreement, Barton, by deed of bargain and sale conveyed, " to Brooke, his heirs and assigns forever, the said lots, with the streets laid down in the said plat; " covenanting in the said Deed, that he and they might, at all times thereafter, enter into, possess and enjoy the said lots, with the streets, & c., without the let, hindrance or molestation of him the said Seth Barton, his heirs or assigns, or of any person or persons whatsoever.
Nevertheless, he kept the lots and streets inclosed by fences, and deprived Brooke of the full benefit of his purchase; whereupon, the latter exhibited a Bill in the Superior Court of Chancery for the Richmond District, to compel him to remove those obstructions, and to keep open the said streets, and for general relief.
The defendant having been served with process, and failing to answer, a decree nisi was entered, and served upon him; and, he still failing to answer, the plaintiff moved for a decree; but Chancellor Taylor, " being of opinion that, as the defendant did not undertake to open the Streets, he could not be compelled to do it," dismissed the Bill.
From this Decree the plaintiff appealed.
OPINION
The cause being submitted without argument, JUDGE ROANE pronounced the Court's Opinion, at the said Decree be reversed with costs; and (Barton having died since the appeal, whereupon his executors had been made parties by scire facias,) that a decree be entered enjoining the appellees, and " those claiming under them, to remove all and every obstruction or obstructions, by them opposed, by inclosures or otherwise, to the free and full use, by the appellant, his heirs and assigns, of the streets specified in the plat and survey of Bartholomew Fuller, filed as an exhibit in this cause, and open the said streets to the free and full use of the said appellant, his heirs and assigns; and that they permit the said appellant, his heirs and assigns ever thereafter to enjoy the use of the said streets, without future let, hindrance or molestation."