There was consideration for this quitclaim deed. The $10.00 specified in the deed as consideration was in fact paid. (Tr. 32). Moreover, the deed was executed in part in consideration for plaintiffs' withdrawing their written opposition to the closing of another alley of about 50 feet in length in the square which defendant's then-president, John I. Bender, considered important to his plans for the construction of a modern building on the land on the southeastern portion of the square where the Bender Building now stands. Whatever the merits of this objection, its withdrawal constituted consideration for it had, at the very least, a nuisance value. (Tr. 349-352.) Lot 8 was owned by a third party at the time the quitclaim deed was executed. Defendant had assured plaintiffs of his specific intention to acquire Lot 8. Defendant in fact did later acquire Lot 8 by August 13, 1964, before this action was instituted.
Since defendant did not own Lot 8 as of the date of this quitclaim deed, however, it now argues, in spite of the language of the deed, that the doctrine of estoppel by deed does not apply and that by virtue of its subsequent acquisition of Lot 8 it has a continuing right to the "use and convenience" of Alley B. The quitclaim deed will, however, be upheld in its entirety for this contention is without merit. Great care must be taken in permitting a quitclaim deed to run against future acquired property. It appears to the Court that in this instance there is no reason not to take a liberal view of the effect of the deed under the circumstances shown by the record. The grantor, a knowledgeable contractor, received substantial benefit from the deed. It is also undisputed that it was the intention of the parties prior to execution of the quitclaim deed (Tr. 29) as well as stated in clear and unambiguous language in the deed itself. The modern trend of the cases and the common sense of this situation require that the quitclaim deed be upheld. To do otherwise would be to countenance a complete disregard for the basic elements of contract which lie at the heart of real estate transactions. The thrust of cases in this jurisdiction points up the great significance of the intention of the parties in construing any deed. Morris v. Wheat, 8 App.D.C. 379 (1896); see also, Williams v. Paine, 169 U.S. 55, 18 S. Ct. 279, 42 L. Ed. 658 (1897). No District of Columbia case directly in point has been found but the reasoning of the following cases from other jurisdictions is in point and is accepted, particularly in the light of D.C.Code § 45-101 (1967). Thornton v. Louch, 297 Ill. 204, 130 N.E. 467 (1921); In re Wilson's Estate, 40 Cal.App.2d 229, 104 P.2d 716 (1940); Williams v. Reid, 37 S.W.2d 537 (Mo.1931); 144 A.L.R. 561.
The quitclaim deed, by its terms, conveyed to plaintiffs "any interest whatsoever" which defendant has in Alley B as a result of its ownership of the lots specified in the deed. In an effort to defeat the effect of the quitclaim deed, defendant also argues that defendant may still use Alley B because title to that alley is actually in the District of Columbia and because members of the public and persons working in buildings in Lots 812-814, which defendant now owns, have rights to the alley by prescription.
The District of Columbia was not a party to this proceeding and at the outset of the trial the Court declined to rule that it was an indispensable or necessary party.
Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48 at 52, 75 S. Ct. 151, 99 L. Ed. 59 (1954). In the absence of the District, however, the defendant was permitted to present proof to support its contention that the alleys in question are in fact owned by the District, from which premise defendant hoped to be able to argue that its quitclaim deed affecting Alley B was a nullity. A number of representatives of the District were called to testify and documents from the files of the District were received in evidence. While any determination here made is naturally not binding on the District, the Court concludes on the basis of the record before it that the alleys are still private alleys and that defendant did not carry its burden of proof in seeking to demonstrate that the District had taken title to either alley by adverse possession prior to the time the quitclaim deed was executed or at any subsequent date.
In reaching this conclusion the Court has taken into account that the District Surveyor has not shown the alleys as public on any plat, which would be the general practice if such were the case; that a District official advised defendant in late 1965 that the Surveyor's office records did not show the alley to be public but in effect private; that the District does not maintain and clean alleys; that defendant withdrew an application to have the alleys declared public as preliminary to their being closed; and that there was not even a suggestion from the testimony of various officials of the District that the District has ever claimed or contemplates claiming either a prescriptive easement or title. (Tr. 126-130, 152-159, 214-226; Def.Ex. 38). While the status of alleys in the District of Columbia is often confused and in doubt and there was some conflicting evidence in this case, defendant did not meet its burden.
Defendant further argues that it has acquired an easement by prescription in Alley B by virtue of the use made of the alley by employees of defendant's tenant and employees of the tenants of defendant's predecessor in title in connection with the use and occupation of Lots 812, 813 and 814 where the Daly and Logan Buildings are located.
The Restatement of Property, Section 457, states that:
"An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (1) adverse, and (2) for the period of prescription, continuous and uninterrupted."