The opinion of the court was delivered, by
Read, J.— This was an action on the case for obstructing an alley running from east to west ’ through the centre of a block of lots between Eighth and Ninth, Sassafras and Myrtle streets, in the city of Erie. The owners of these lots, on the 6th February 1837, by a written agreement, under seal and recorded on the 18th March following, laid out an alley of twenty feet wide, running from Myrtle to Sassafras street, east and west; and further, each and every of them thereby gave ten feet of each one of their lots on the back end of the said alley, to be kept open for a street or alley for ever, and thereby permitted the same to be placed on record as such. Said alley is not to be obstructed in any way except passing through.
This alley from this moment became an alley of precisely ascei’tained limits as to length, width, and position in this block of lots, which appear to have been designated by numbers, and *47extended from one street to another, and every owner had a right of passage over the same, without any obstruction, which was expressly prohibited by the agreement of the parties. Both the plaintiff and defendant derive their title from the original owners, who were the parties to this agreement. The defendant purchased lot No. 1256 in 1850, and afterwards erected a barn on the back end, occupying the ten feet which had be'en thrown into the alley.
The plaintiff was and is the owner of parts of lots 1261 and 1264 in this block, with a right of passage over this alley, and this right of way was obstructed or disturbed by the interposition of the defendant’s barn, which reduced the width of the alley from 20 to 10 feet, for which injury the defendant must compensate the plaintiff in damages.
Upon this statement it is clear the plaintiff must recover, and therefore the court might so have instructed the jury. No points were presented to the court; but the counsel for the defendants excepts to the general charge to the jury.
The court, it is true, in their charge, have not distinctly said that this was either a public highway or merely a private alley, but, considering it the latter only, have laid down the law correctly ; and none of the authorities cited by the defendant disclose any error in this particular. “ Viewed,” say the court, “ as an easement to the owners of the respective lots in that square, mere' non-user without actual adverse occupancy for twenty-one years would *ot work a forfeiture of the right. The Statute of Limitations would not in that case run in favour of any of those grantors against their own grant.”
We see no error in this instruction, for if upon the theory that non-user is equivalent to adverse possession, and no improvements had been made by any one, on any of these lots, and of course no use made of the alley thus laid out by the owners for twenty-one years, then this solemn agreement was abrogated, and all the rights of every proprietor in this alley were entirely extinguished. This clearly cannot be the law, and no case has been found establishing any such rule of placing any such construction on a statute so wholesome when applied to cases within its language and spirit.
It is clear, therefore, that this was not a public highway, but a private alley, which was not affected by the treasurer’s deed, and for the disturbance of which the plaintiff was entitled to damages. Judgment affirmed.