Humphreys v. Eastlack.

he may be advised whether or not he holds the cash proceeds of sale and the mortgage securing part of the purchase-money upon the same uses and trusts as are set forth in the deed to Peter W. Baker.

The true construction of the trust deed upon the point submitted has been hereinbefore declared. As to the remaining question whether the trustee now holds the proceeds of sale subject to the same uses declared by the trust deed, he must be advised that at the present time, so far as the facts are disclosed by the bill and answer, he does.

The trust deed provides that the trustee, "by indenture well and sufficiently executed by and with the consent of the said Kate Baker, testified by her becoming a party to and signing and sealing the same," may revoke, &c. The only allegation in the bill or answer of any act of revocation is the statement in the bill of the service of a notice by Mrs. Kate Baker Williams upon the trustee. If the deed conveying the premises, in which both the trustee and Mrs. Williams joined as grantors, contained a revocation of the trust, it is not so alleged in the pleadings. The revocation has not been accomplished by the mere notice served upon the trustee by Mrs. Williams. The trustee must revoke by his indenture, Mrs. Williams consenting by becoming a party thereto, as prescribed in the trust deed.

A decree will be advised according to the views above expressed.

Humphreys v. Eastlack.

2. A complainant who by his pleadings and issues joined thereon and proofs submitted in support of those issues, has presented certain and definite grounds for relief, cannot, after the case has closed, without suggestion of amendment, present by argument only, entirely different and new grounds for relief and have decree made on those grounds.

3. It is declared in Salter v. Jonas, 10 Vr. 469, that a deed conveying a lot of land which describes its boundary as running along the side of a street will, by legal presumption (in the absence of words excluding the street), be held to embrace the lands lying in the street, to the centre line. This declaration is based upon the assumption that there has been some showing that the grantor in the deed had title to the centre line of the street. If there be no proof that the grantor had title to the centre line of the street, no presumption arises that he intended to convey to that centre line.

On bill, answer and proofs.

The bill filed by complainant claims that he is the owner of a lot of land, the houses on which are Nos. 230 and 232 Market street, in the city of Camden. This lot lies adjacent to the southwest corner of Market and Third streets. The bill alleges that four lots lying at the four corners of Third and Market streets, each thirty feet on Third street and forty feet on Market street, were (at some unnamed day) conveyed to the city of Camden "to be used as a public mart or highway and for the public use;" that for more than forty years said lots have been used by the city of Camden as a public highway and for public use as part of its public street, and that the corner adjacent to complainant's lot has been used by complainant as an entrance or highway to his land bordering on said Market place or street. These four lots are recessed corners, and are designated "Market square" in some of the deeds and as "Market place" in later ones.

The bill alleges that the defendant erected a building on his lot, adjoining complainant's lot, and that some five years before the filing of the bill of complaint, the defendant constructed along the east line of his building a metal awning extending for twenty feet from his east wall out upon Market place in front of the complainant's property, the awning being fifteen feet high and having five awning poles on said Market place, to sustain it; that at the same time that the defendant

Humphreys v. Eastlack.

erected the awning, &c., he placed a cellarway in the east side of his building, extending out upon Market place a distance of six feet; that he continually keeps a number of boxes and barrels in said Market place upon the land in front of complainant's property; that he has built in the east line of his property a bulk window, which extends beyond his building line for two feet out upon said Market place in front of the property of complainant.

The complainant charges that said Market place, by the erection of the awning, cellarway, bulk window and the placing of boxes, barrels, &c., is, and must necessarily and unavoidably be, much obstructed as a public highway or for the public use; that Market place is thereby rendered much less convenient to the complainant and his tenants; that he is deprived of its use and enjoyment as an entrance to his land bordering thereon, as a highway, and that his outlook, light and air and vision over Market place in front of his land is hampered, cut off and destroyed, detracting from the value of his property to his damage and injury.

The complainant prays that the defendant may, by decree, be forbidden to continue his alleged obstruction of Market place and from entering or placing any of the obstructions named in, upon or across said Market place and from preventing the complainant in his enjoyment of said Market place.

The defendant has answered the bill. He admits the complainant's ownership of the lot of land at the southwest corner of Third and Market streets. He denies the alleged conveyance of the four corner lots to the city of Camden to be used as a public highway, but admits that for the last forty years they have been so used by the city of Camden as part of its public street. He denies that the complainant has used them as an entrance or highway to his land bordering on said lots, and avers that the complainant has had no special use of the lots in front of his property different or distinct from the public use.

He also denies that he erected the building on his lot, as is alleged in the bill, and says that the building was erected by a former owner, Elizabeth F. Smith, in the same manner as buildings are lawfully erected along the line of public streets

Humphreys v. Eastlack.

of the city of Camden, and that it was so erected with the full consent and approbation of Evaline E. Humphreys, sister of said Elizabeth F. Smith, and then owner of the lot now owned by the complainant. The defendant also alleges that Market place, named in complainant's bill, is part of a public street of the city of Camden; that by the amended charter of that city, the exclusive control of the streets of the city is vested in city council, and in pursuance of that power, the city council has, by ordinance, regulated the use of the streets of the city, including said Market place, and has provided for the erection of awnings, stoops, show and bulk or store windows.

The defendant denies that he erected the metal awning alleged in the bill and avers that it was built by the said Elizabeth F. Smith in 1879, with the full consent of the said Evaline E. Humphreys, in accordance with the ordinances of the city of Camden, but admits that in 1889 the defendant caused the awning to be repaired. The defendant further denies that he placed the cellarway at the time of the repairing of his awning, and says that the cellarway was built prior to 1879, while the property owned by defendant was owned by said Elizabeth F. Smith, and that it was located with the full consent of Evaline E. Humphreys, then owner of the complainant's property; that it extends out a distance not of six feet, but only four feet nine inches, into said Market place.

The defendant denies that he continually has barrels and boxes in said Market place as is alleged in the bill, and says that such barrels and boxes are only occasionally in said Market place, while waiting to be stored in defendant's building or to be hauled away, and that they are used in connection with the retail grocery business of the defendant. The defendant alleges that he has erected a bulk window on the east side of his property, denies that it extends two feet beyond his line and says that it extends but eleven inches and is built in accordance with the ordinances of the city of Camden.

The defendant denies that the erection of the awning, cellarway, bulk window and the placing of boxes and barrels in Market place, are any obstruction of the public highway for public use, and further denies that Market place is thereby rendered less

Humphreys v. Eastlack.

convenient to the complainant and the tenants of his land, and that they hamper or destroy the outlook, light, air and vision of the complainant over said Market place.

The defendant insists that the complainant's bill exhibits no injury special to himself, distinct from that sustained by the general public; that it shows no equity and he prays the same advantage of this, as if he had demurred to the bill.

The following is a copy of a plan exhibited at the hearing, showing the locus in quo and the several alleged obstructions of the highway, of which complaint is made. The recessed corner lot, referred to in the bill as "Market place," is indicated by a red line and dotted blue line. (See notes below.)