Before MARIS, STALEY and ALDRICH, Circuit Judges.
This suit involves a controversy as to the right of the defendant Vivian deFREITAS to use a passage and stairway*fn1 through the land of the plaintiff Cyril E. Smith for the purpose of ingress to and egress from her property. The plaintiff sought an injunction in the District Court of the Virgin Islands to restrain the defendant from such use. The district court held that the defendant was entitled to the use of the passage and stairway as a freeway and a way of necessity and entered a judgment so declaring and regulating its use. The plaintiff has appealed.
The plaintiff's property is known as No. 2a Sneglegade in Queen's Quarter in the town of Charlotte Amalie, St. Thomas, and abuts upon a public street known as Sneglegade. The property is located on a hillside and rises rather steeply away from the street toward the north. The defendant owns a property known as No. 2b Sneglegade which adjoins the plaintiff's property on the rear and extends farther up the hillside to the northward. Parcel No. 2b does not abut upon any street. Parcels Nos. 2a and 2b, together with a third parcel, No. 2c, farther up the hillside to the northward, were originally parts of a single parcel, No. 2 Sneglegade, which by a partition made by the owners in 1860 was divided into the three parcels, Nos. 2a, 2b and 2c.
Ancient plans on file in the Department of Public Works in St. Thomas show that as early as 1836 there were buildings on each of the portions of Parcel No. 2 Sneglegade which now comprise Parcels Nos. 2a, 2b and 2c, and that a passage which included three flights of stairs led down from the portion now known as No. 2b along the west boundary line through the portion now known as No. 2a to the public street, Sneglegade. Likewise a plan annexed to the partition agreement of 1860 and referred to therein shows the same buildings and the passage with its stairways leading from the buildings on the parcel designated thereon as No. 2b down to Sneglegade.That passage and its stairways, which constitute the way in controversy, still exist and extend over the westerly 5 feet of Parcel No. 2a from a door in the boundary wall between Parcels Nos. 2b and 2a southwardly alongside the plaintiff's dwelling house a distance of about 66 feet to Sneglegade. Three doors open upon the passageway, the door at its upper end leading from the defendant's property, No. 2b, and the rear and front doors of the plaintiff's residence which occupies most of the remainder of Parcel No. 2a.
From 1860 to 1868 Parcels Nos. 2a and 2b were owned by different persons while from 1868 until 1884 and perhaps later they would appear to have been owned by the same person. At some time thereafter, the exact date not being clear from the record, their ownership was again severed. It is clear, in any event, that since March 1908 Parcels Nos. 2a and 2b have been owned by different individuals. Parcel No. 2a was acquired by the plaintiff by deed from Herman O. Creque on May 9, 1938. Parcel No. 2b and Parcel No. 3 Sneglegade were acquired by the defendant by deed from E. Leonard Brewer, executor of the Estate of Elvira A. Moron, deceased, on February 13, 1954.
It is the defendant's contention that the passageway in controversy is an ancient freeway (frigang) extending from the land now comprising Parcel No. 2b to Sneglegade, to the use of which she as the present owner of that parcel of land is entitled, and that in any event she is entitled to use the passageway as a way of necessity to which the owner of Parcel No. 2b became entitled when the ownership of Parcel No. 2a passed into other hands. The plaintiff urges, on the other hand, that since the defendant also owns Parcel No. 3 Sneglegade which adjoins Parcel No. 2b on the west and which abuts on both Sneglegade and Bjergegade, she has a means of access from her property No. 2b to the public streets through her property No. 3. This, he says, defeats the implication of a way of necessity through his property. To this the defendant replies that access from Parcel No. 2b to a public street through Parcel No. 3 requires going through a low narrow gateway in the wall between Parcels Nos. 2b and 3, then past a rear shed, then through a rear yard, then down a set of steps and along a passage into which bedroom doors open, then at an angle to the right down another set of steps, and finally at an angle to the left through a passageway to the street, which at that point is Bjergegade not Sneglegade. This, says the defendant, is so inconvenient and inadequate a means of access from her property No. 2b to the public street as to warrant the continued implication of a way of necessity in her favor through the plaintiff's property.
The district court made the following findings of fact pertinent to these issues:
"3. That there exists between Parcel Nos. 2a and 3 a freeway (stairway) to Parcel No. 2b which has been used by the parties hereto and their predecessors in interest for many years, and the use of which by defendant is necessary as an approach to defendant's property; and
"4. That of necessity the plaintiff and the defendant as owners of the aforesaid parcels are entitled to the common and reasonable use of such freeway, the actual title to which shall be vested in the plaintiff, subject, however, to the rights of the defendant thereto."
We cannot say that the district court erred in finding that the passageway in question is an ancient freeway to the use of which the defendant is entitled. Plans Nos. 3 and 4 from the Hingelberg book of November 1836 on file in the Department of Public Works in St. Thomas, show the passageway as then existing and as the only way of access from the buildings in the area now known as Parcel No. 2b Sneglegade to the public street below. These Hingelberg plans establish that the passageway is a very ancient one. This fact is further confirmed by the physical characteristics of the passage and its stairways themselves, particularly the upper end of the passage which comprises an ancient set of steps and a doorway leading only into the defendant's property No. 2b.
The agreement of partition dated April 26, 1860, between the owners of the former Parcel No. 2 Sneglegade expressly provided that the division of the property was to be according to a plan of the whole lot made by the Royal Surveyor, Major Strandgaard, which was annexed to the agreement. The annexed Strandgaard plan clearly showed the passageway and stairs in question running from the south line of the new Parcel No. 2b along the west line of the new Parcel No. 2a southwardly down to Sneglegade.
The plaintiff urges that neither the agreement of partition nor the subsequent deeds contain any express grant of the easement of the right of way in question and that the defendant is, therefore, not entitled to it. We do not agree. The Danish law which was in force in St. Thomas prior to 1921*fn2, it is true, required the registration of rights of property. But, as F. Vinding Kruse states in his work, Ejendomsretten [Property Law], Kobenhavn, 1951, 3d ed., Vol. 1, p. 1041:
"An important exception to the demand for registration relates to private rights of way, since here a rule applies that, when a certain path is the only or the main access to property or to some of its plots and the right of way is indicated on the maps, the right of way, even if it is not ...