The essence of the dispute between these parties is the de-. fendant’s denial of the complainant’s right to use the alley in question for the passage of wagons and horses in and about the conduct of his business. The execution and delivery of the deeds above recited aré not denied. That the defendant'had granted a right of way for use as a private alley, while, in form, denied in the answer, was admitted on the argument.
The defence is made, first, on the ground that the case is within the ruling of the court of appeals, in Todd v. Staats, 15 Dick. Ch. Rep. 507, to the effect that where the fundamental right of the complainant is based upon an alleged easement in lands of the defendant, which is in substantial -dispute, the establishment of the right at law must precede the interference of a court of equity.
The case under consideration differs in several essential particulars from the ease of Todd v. Staats. In that case both the *176legal right to the easement and the location of it on the land were -in dispute. There was no actual user and enjoyment of it in the conduct of a business which would be destroyed by a cessation during the pendency of a suit. In this case there is no dispute 'regarding the territorial location of the easement: Both sides agree upon the existence' and boundaries of the alley. It is not disputed that the complainant is entitled to a way over the alley. He has for years been in the actual use of it. The point disputed is the character of the use which he is entitled to make of the way—a question, not of fact to be found by a jury, but of law to be determined by á court upon an inspection of the alleged grant.
It is also substantially undisputed that the defendant has so obstructed the alley that the complainant is unable to use it in the manner in which for years, he, and those under whom he claims, have been accustomed to use it, and it manifestly appears by the defence made that the defendant intends to continue so to obstruct it, unless restrained by the process of this court. Such interference would -be, substantially, a destruction of the complainant’s milk business, as his milk-house would be cut off from all street or alley access. This would be an injury continuous in its nature, for which no adequate relief can be afforded him at law.
Another distinction between the Todd Case and that now under consideration, appears in the character of the title to the easement. In the Todd Case every question suggested is declared by the court of appeals to lack any element of an equitable nature and to be properly determinable by the courts of law (at p. 5IS). An examination of all the deeds submitted in this case will show that the clause which deals with the right of way is disassociated from the words of grant in the deeds. The words used are not words of conveyance, but of promise and agreement, and if the complainant were sent before a law court to establish a title to the way, it might there be forcefully argued that he has no legal title to the easement; that his rights on the face of all the deeds are purely equitable and he would, after all, be obliged to ask the intervention of this court to secure him *177tbe benefits of his purchase. Fox these reasons the decision in Todd v. Staats cannot be considered to control the present cause.
The defendant contends, secondly, that by the terms of the deed made by the defendant to Mrs. Shreve, the alley is usable only by the owner of the whole of the lot' conveyed by that deed and not by the owner of a part only of that lot, which the complainant in this case has come to be. The expressions in the defendant’s deed regarding the right of way, are an agreement that the grantee and grantor, “their heirs and assigns, shall at all times have a free and unobstructed right of way in and over a certain private alley, situate,’’ &c. The complainant has, by intermediate conveyances, come to be the holder of title to the northern end of the lot which the defendant «conveyed. This is the part which the complainant holds and on which he has erected his milk-house and conducts his business. It comprises the onfy part of the lot which the defendant conveyed, which adjoins the alley. (See diagram.) The occupants of the other part cannot reach the alley without crossing the complainant’s lot. The effect of this division of the lot conveyed by the defendant, has been to lessen rather than to increase the area of land which may use the alley, if the point made has any significance. To declare that the alley can be used only by each holder of the whole of the lots owned by the defendant and his grantee, at the time the defendant conveyed in 1891, would probably be a greater disadvantage to the defendant than to the complainant, for the lot the defendant then owned bounds on the alley for one hundred and fifteen feet and is so located that a subdivision of it into smaller lots which may use the alley as a back entrance, may be- very profitable to the defendant. The terms used in his deed are of mutual agreement as to the use of the alley. They bind the defendant and his assigns, as well as his grantee and his assigns. If one is required, in order to use the alley, to be the owner of the whole of the lot, it is difficult to say that the other is not. To hold that only the owner of the whole of each lot may use the alley, would be a very serious injury to both parties. Nothing in the expressions used in the deed justifies such a construction. ,
*178There is, in fact, nothing in the argument for the right of way which either limits its use to the lot conveyed by the same deed, or even relates it to that lot. The agreement for the way is entirely separate and disassociated from the grant of the lot. One passes by one description and set of words, perfect and complete in themselves; the other by another description and set of words which are entirety distinct and unrelated. The terms of the defendant’s deed are such that the rights of the grantee in the way are in gross, and not appendant to the ownership of the lot conveyocl in another part of the same deed.
The last point made by the defendant is his claim that the right of way is over a private alley, and that the use to be made of it must be as a footway for the owners, and not as a foot and wagonway for themselves and such as may have business with them. The agreement for the way contains no specifications of any particular manner in which the alley should be used. It imposes no limitation on the extent of the use. It is declared that it shall be a free and obstructed right of way over a private alley. Any use consistent with the use of a way is within the agreement. A footway, a wagonway, a passage for horses or other animals are all permissible uses -of a way. The reference to a private alley distinguishes it from a public alley, the care and maintenance of which is charged on the public, but does not define or limit the character or the use which those persons entitled to a right of way over the private alley shall make of it. Nor is the owner of the way limited to its use by himself in propria persona. The way belongs to him as his property. All persons having occasion may, with his permission, transact business with him by passing to and fro over the way. He may use it by his servants and employes in conducting his business.
The complainant is entitled to relief. A decree will be advised in accordance with the views above expressed.