{
  "id": 11276283,
  "name": "WILLIAM HAYS v. JOHN O. ASKEW",
  "name_abbreviation": "Hays v. Askew",
  "decision_date": "1857-12",
  "docket_number": "",
  "first_page": "63",
  "last_page": "65",
  "citations": [
    {
      "type": "nominative",
      "cite": "5 Jones 63"
    },
    {
      "type": "official",
      "cite": "50 N.C. 63"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T20:15:56.644691+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM HAYS v. JOHN O. ASKEW."
    ],
    "opinions": [
      {
        "text": "Pearson, J.\nThe legal effect of the deed was to pass the soil of a part of the avenue to the plaintiff, leaving an easement or right of way, called an \u201c avenue,\u201d in the defendant. It is clear that such is the legal effect of the deed; for otherwise, why v'as a part of the avenue included in the deed, and Avliere was the necessity of saying any thing about the purpose for which the defendant reserved an interest in sucli part ?\nAs the freehold vested in the plaintiff, we do not concur with his Honor in the opinion that the defendant might use it for the site of a ware-house, or for any other purpose than a way. It follows that the plaintiff has a cause of action for the erection of the ware-house. Whether the action should be trespass or case, is not now presented, as the plaintiff is entitled to a venire de novo.\nWe likewise differ from his Honor as to the other part of the charge. To raise an estoppel, the admission must be certain. Here, there is no direct admission that this part of the avenue was not also a public high-way. There is no inconsistency in supposing that a part of one\u2019s avenue may be a public higli-way ; in truth, whether it was or was not a public high-way was not in the contemplation of the parties. Besides, an estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parties was to make the matter recited a fixed fact, as the basis of their action ; as, for instance, in this case, in respect to the purpose for which the reservation is made \u2014 to be used as an avenue. So that had there been a recital, \u201c whereas it is not a public high-way,\u201d the application of the doctrine of estoppel would have been questionable. In the absence of such a recital an estoppel cannot grow out of a mere inference in regard to a fact that was over and beyond the contemplation of the parties, so far as is shown by the face of the deed.\nGilliam, v. Bird, 8 Ire. 286, relied on by the defendant\u2019s counsel, lias no application. The kind of estoppel there discussed is strictly a mere rule .of evidence, adopted to avoid the necessity of tracing back the title where both parties claim under the same person.\nPee CubiaM, Judgment reversed, and a veni/re de novo.",
        "type": "majority",
        "author": "Pearson, J."
      }
    ],
    "attorneys": [
      "Garrett and Barnes, for plaintiff.-",
      "Winston, Jr., for defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM HAYS v. JOHN O. ASKEW.\nWhere a grantor of land reserves, for an \u201c avenue,\u201d out of the area conveyed, a certain space, which had been used for the same purpose, it was Held that the legal effect of the deed was to grant the soil, subject to an easement in the grantor.\nTo raise an estoppel, the admission must be certain.\nAn estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parties was to make the matter recited a fixed fact, as the basis of their action.\nActioN of TRESPASS, tried before Caldwell, J., at the last Fall Term of Hertford Superior Court.\nThe declaration against the defendant was for erecting upon a public road or avenue, a ware-house, so near to the storehouse of the plaintiff as to obstruct his rights, and cause his chimney, when the wind blew, to throw back the smoke into his store-room, and otherwise injure him.\nIt appeared, in evidence, that the plaintiff erected a storehouse, in 1849, on the side of a certain public road, leading to Ewer\u2019s landing, and that the defendant, in 1856, erected a ware-house twenty feet long, twelve wide and nine high, in and upon another road, alleged by the plaintiff tobe a public road, leading to the road on the side of which the plaintiff\u2019s store-house was erected, one corner of which, was within six and a half feet of the store-house. It also appeared, in evidence, that the road in which the defendant erected his warehouse, was cut out, many years ago, by one Montgomery, for an avenue from Ms house into the public road, and was known as Montgomery\u2019s avenue ; that the defendant succeeded Montgomery by purchase, and it was then called Askew\u2019s avenue. It was also in evidence, that this avenue had been used by the public, as a near cut, to get into the public road leading by plaintiff\u2019s store-house, from the year 1843, until the defendant erected his ware-house.\nIt also appeared, in evidence, that the defendant, in 1849, sold and conveyed to the plaintiff, by deed, three acres of' land, on which the said store-house was situated; the boundaries of which called for the public road above described and this avenue, and embraced, near the store-house, a part of the land which constituted the said avenue. At this point of the description in the deed, is this clause: \u201c Here I reserve the width of twenty feet for my avenue: thence down the said avenue to the sweet gum, the first station, still reserving for ever the width of twenty feet, at least, for my avenue to my house.\u201d It was on this width of twenty feet that the ware-house complained of was built.\nThe defendant contended that the plaintiff was estopped by the operation of this deed, to say that the avenue was a public road, and the plaintiff insisted that the operation of this deed restrained the defendant from using the space reserved for any other purpose than as an avenue.\nThe Court charged the jury that the plaintiff could not be heard to say, that the avenue in question was public property ; that, as between the parties, it was private property, and though the defendant retained it for an avenue, he was not disabled from using it for other purposes. \u2022 The plaintiff excepted to these instructions. There was a verdict for the defendant, and judgment, and the plaintiff appealed.\nGarrett and Barnes, for plaintiff.-\nWinston, Jr., for defendant."
  },
  "file_name": "0063-01",
  "first_page_order": 71,
  "last_page_order": 73
}