Brunthaver v. Talty ( 1908 )

Mr. Chief Justice Shepard

delivered the opinion of the-Court:

Complainant’s contention is that, by building said wall without having an opening for the use of the alley, the said Cryer abandoned the same, and her right thereby became extinguished. She also contends that, when she acquired her title, she had the-right to assume the abandonment and extinguishment of the right to use said alley, whereby defendant is estopped to assert a right thereto. She made no inquiries concerning the abandonment of the open alley, and no representations were made to hex" concerning its abandonment.

On this state of facts, we think the court was right in dismissing the bill to restrain the use of the alley by the defendant.

The conduct of Rebecca Cryer in building and maintaining the wall without an opening for entrance to the alley amounted to nothing more than nonuser of the easement. Nothing was done by anyone else to obstruct her use. Mere neglect to enjoy an easement created by grant has no greater effect to extinguish the right of the grantee thereto than to the freehold to which it is appurtenant. This principle is established by the great weight of authority. For some of these, see: Day v. Walden, 46 Mich. 575, 583, 10 N. W. 26; Arnold v. Stevens, 24 Pick. 306, 112, 35 Am. Dec. 305; Welsh v. Taylor, 134 N. Y. 450, 459, 18 L.R.A. 535, 31 N. E. 896; Conabeer v. New York C. & H. R. R. Co. 156 N. Y. 474, 484, 51 N. E. 402; Perth Amboy Terra Cotta Co. v. Ryan, 68 N. J. L. 474, 477, 53 Atl. 699; Curran v. Louisville, 83 Ky. 628, 632; Edgerton v. McMullan, 55 Kan. 90, 92, 39 Pac. 1021; Lindeman v. Lindsey, 69 Pa. 93, 100, 8 Am. Rep. 219; Richmond v. Bennett, 205 Pa. 470, 471, 55 Atl. 17; Kuecken v. Voltz, 110 Ill. 264, 271;. Noll v. Dubuque, R. & M. R. Co. 32 Iowa, 66, 71.

It is unnecessary to review the cases cited on the argument by appellant. None of these go farther than to maintain the doctrine that an easement created by grant can be abandoned and extinguished by certain acts in pais, without deed or other writing. And none hold that nonuser alone will work the extinguishment of the granted right. In the case chiefly relied on by the appellant it was said in the course of the opinion that cesser of use, coupled with any act clearly indicating an intent to abandon the right, would have the same effect as an express release. Vogler v. Geiss, 51 Md. 407, 410. That expression in the opinion must be considered in the light of the facts of the case, which are quite different from the facts in this ease. There the question was not whether the party had abandoned the right by erecting a wall at the entrance to the alley from his own land, but whether he had abandoned it by consenting to the erection, by tbe owner of tbe servient estate, of an obstruction of tbe easement. And it was also said in that case: “If the party be authorized to raise the obstructions complained of by mere parol license, and such license be executed before revocation, and the obstructions be only temporary in duration or partial in effect, the easement is only suspended or modified for the term of the duration of the obstruction raised in pursuance of such license. * * * In such case, after the removal of the obstructions, the right to use the easement as formerly is restored.”

There is no way, in our opinion, in which an easement created by grant can be extinguished by abandonment, — that is to say by nonuser, — unless there has been, in connection with acts inconsistent with the intent to use, some acquiescence in its obstruction by another for a reasonable period at least, or some representations that would work an estoppel. Nothing whatever was done by the successive owners of the lots abutting on the alley, in this case, to prevent the enjoyment of the easement by the defendant or those under whom she claims. Defendant’s wall did not obstruct the alley, and it remained open to her use at will. Omitting to construct a door in the wall was nothing more than evidence of nonuser of the easement which she could later avoid herself by cutting an opening for the purpose which she did when it suited her convenience. The failure to construct this door into the open and unobstructed alley, before complainant purchased her lot, indicated nothing more, under all the circumstances of the case, than that defendant was not then making use of the easement. No inquiry was made with a view to ascertain if she had really abandoned the right with no intention to exercise it in the future. A necessary element of the estoppel claimed is wanting. Complainant had no right to assume, in the face of recorded titles under which both parties held, and the unobstructed condition of the alley, that defendant had forever relinquished her right to its enjoyment. In this connection, it is to be remembered, also, that the grant under which complainant holds extends but 72 feet, and is limited to the line of the alley on her side. She took an easement in the alley by her deed, as did the owner of the lot between her and E street, and no greater interest.

The decree will be affirmed with costs. A ffirmed.