Mitchell v. Seipel , 53 Md. 251 ( 1880 )

Miller, J.,

delivered the opinion of the Court.

This action was brought in December, 1878, by the appellee against the appellant to recover damages for closing and obstructing an alley between two houses then separately owned by the respective parties. The case presents an important and interesting question respecting the law of easements.

The facts necessary to be stated, and about which there is no dispute are these: In the year 1839, Daniel Collins became the owner under a lease for ninety-nine years renewable forever of a lot ground in the City of Baltimore, fronting thirty feet on West street, and extending back eighty feet to Gould lane, a public alley twenty feet wide. The lot was then vacant, but soon after his purchase Collins erected thereon two brick houses fronting on West-street. These houses were built about the same time, the first having a front of fifteen feet, and the second a front in the lower story of twelve feet and six inches, and in the upper stories of fifteen feet, thus leaving an alley of two feet and six inches between them, covered by the joists which supported the second floor of the second house. These joists projected over the alley and into the adjoining wall of the first house. The alley thus covered was open to the street, and extended hack between the houses about thirty feet. At its inner terminus two gates were placed, which opened respectively into the rear premises and yards of each house, and it was used by the occupants of each as a common passage way to and from the street. Each house had, as usual, a front door opening upon the street, and from the end of the alley a fence was built which extended back to Gould lane, and divided the lot into two parts, giving to each a width of fifteen feet. During his life, Collins continued the owner of the whole property and occupied one of the houses. After his death his widow became the owner under his will, and so continued until the year 1865, when by an order of the Orphans’ Court, and in pursuance of a power contained in the will, the executor of Collins sold and conveyed the entire property to George T. Waters.

While the unity of possession thus continued, it is very clear no easement in respect to this alley existed. A party cannot have an easement in his own land, inasmuch as all the uses of an easement are fully comprehended in his general right of ownership. Oliver vs. Hook, 47 Md., 308. But this unity of ownership was severed on the 8th of June, 1865, by Waters the owner, who on that day sold and conveyed the second house and lot to George W. Chandler, from whom the defendant through several mesne conveyances derived his title to the same. This conveyance was an absolute and unqualified grant, describing the property by metes and bounds, which included the whole of this alley, and contained no reservation of the right to use the same for the benefit of the house and lot retained by the grantor. Waters retained ownership of the first house and lot until the 29th of July, 1868, when he sold and conveyed the same to the plaintiff by a similar grant, which embraced no part of the alley. The defendant obtained his title to the second house and lot, (as before stated by mesne conveyances from Chandler, the first grantee thereof,) in October, 1874, and shortly before this suit was brought, prevented the plaintiff from using the alley, by placing upon it buildings and other obstructions. There is no pretence that the plaintiff had acquired a prescriptive right to use the alley, nor is the case complicated hy any easements of drainage or sewerage. There are no pipes or drains, either underground or otherwise, •from one house to the other, and thence to a common outlet, nor does the surface drainage pass through the alley. The proof shows that the natural flow of surface water, and. that from the hydrants on both premises is in the opposite direction, towards and to G-ould lane. The alley was therefore simply a convenient passage way. Without doubt it was open and apparent, and was made and designed by Collins, for the common use and benefit of both houses, and was in fact so used by the occupants of both, until obstructed by the defendant, but it is equally clear' that Collins and those who succeeded him in the ownership of both could have closed it, and re-arranged the premises at pleasure. The real question in the case then is: Does the law attach to the unqualified grant in 1865, from Waters to Chandler, of the second house and lot, by metes and bounds, which include the whole of this alley, an implied reservation of the use of it for the benefit of the house and premises retained by the grantor ? Upon this point, our investigations have led us to an examination of the large number of authorities cited by counsel, as well as many others, and upon no question have we found so great a contrariety of judicial opinions and dicta, if not of actual decisions.

There is a general concurrence of authority, both in England and in this country in support of the proposition, that on the grant, by the owner of a tenement, of part of that tenement as it is then used and enjoyed, that will pass to the grantee all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been, and are at the time of the grant used by the owner of. the entirety for the benefit of the part granted, and so it was decided by this Court in Janes vs. Jenkins, 34 Md., 1. But the question here is, whether upon such a grant, the law will engraft a reservation of such easements in favor of the part retained by the grantor. Upon this point, the authorities in England, until quite recently, have been conflicting. As early as the case of Palmer vs. Fletcher, 1 Lev., 122, the question was mooted, but there was a difference of opinion among the Judges, and it was not decided. The subsequent case of Nicholas vs. Chamberlain, 3 Cro. Jac., 121, was decided upon demurrer, and in the report of it, the pleadings are not given. It has been often cited, and sometimes for the purpose of sustaining the position that in all cases of what are termed apparent and continuous easements, the doctrine of implied reservation stands upon exactly -the same footing as the doctrine of implied grant, but in so far as it may be thought to sustain that position, we have the high authority of Thesiger, L. J., who delivered the judgment of the Court of Appeal in Wheeldon vs. Burrows, 12 Ch. Div., 31, for the statement that it has again and again been overruled. If, however, in addition to the doctrine of implied grant, it merely decides that there may be an implied reservation of what are termed easements of necessity, then it is quite in accord with other English authorities.

In the later case of Tenant vs. Goldwin, 2 Ld. Ray., 1089, so great a Judge as Lord Holt, in delivering the judgment of the Court, refers to Fletcher vs. Palmer, and says: “If, indeed, the builder of the house sells the house, with the lights and appurtenances, he cannot build upon the remainder of the ground so near as to stop the lights of the house, and, as he cannot do it, so, neither, can his vendee. But if he had sold the vacant piece of ground and kept the house, without reserving the benefit of the lights, the vendee might build against the house. But in the other case where he sells the house, the vacant piece of ground is by that grant charged with the lights.” Here the doctrine of implied reservation is plainly denied. In the first edition of Odie on Easements, the learned author sets out the doctrine of the French law to the effect that if the proprietor of two heritages between which there exists an apparent and continuous servitude, disposes of one of them without any stipulation in the contract respecting the servitude, it continues to exist, actively or passively, in favor of the heritage alienated or upon it. And with this he says the English law appears to agree, and declares that the only opposition to this doctrine is the opinion of Lord Holt in Tenant vs. Goldwin, which he pronounces a mere dictum, or, at most, an opinion founded probably upon the civil law, whereas the doctrine of the English law on this subject is probably of French origin. In the case of Pyer vs. Carter, 1 Hurls. & Nor., 916, the Court of Exchequer adopted this statement of' Mr. Gale, and practically denied the existence in such cases of any distinction between an implied grant and an implied reservation with reference to such easements. But this case soon gave rise to controversy. It is supposed to have been approved by the House of Lords in Ewart vs. Cochrane, 9 Jurist, 925, but that case, which was an appeal from the Court of Sessions in Scotland, only involved the question whether that was an implied grant of the easement. The plaintiffs were the owners of a tannery, and the defendant was the owner of the adjoining house and garden. Both properties at one time belonged to the same owner, and there was a drain carrying off the surplus water from the tanyard into a cesspool in the adjoining garden, where it disappeared by absorption. The tannery was sold by the common owner in 1819 to a party under whom the plaintiffs derived title, and the defendant purchased the house and garden in 1858, and then stopped up the drain. The Court below decided in favor of the plaintiffs, on the ground that there was an implied grant of the easement by the conveyance of the tannery in 1819. In the House of Lords, the Chancellor, (Lord Campbell) said : “ The ground on which I proceed is this — that this is a servitude which the grant implies.. I cannot entertain the slightest doubt upon that. I mean on the grant accompanied by the enjoyment which existed at the time the grant was made.” He then cites Pyer vs. Carter, as sustaining this position of an implied grant, as the opinion of the Court of Exchequer undoubtedly does, and in Janes vs. Jenkins it was cited by this Court for the same purpose only. In neither of these cases did any other question than that of an implied grant arise. In the subsequent case of White vs. Bass, 7 H. &. N., 722, the Court of Exchequer itself decided in direct conflict with the doctrine of implied reservation it had previously announced in Pyer vs. Carter. That case may be stated thus : The owners in fee of a house and adjoining land in 1856 conveyed the land to the defendant, and in 1857 sold the house to the plaintiff, and it was held, al' the Judges concurring, that the plaintiff could maintain no action against the defendant for building on the land so as to obstruct the light and air which formerly came to the windows of his house. Ohannell, B., quotes with entire approval the opinion of Lord Holt in Tenant vs. Goldwin, and Wilde, B., says : “It is said that the owners who conveyed to the trustees the reversion in fee of the land, having at that time themselves the use of the neighboring house, is a circumstance from which it ought to be implied that, in granting fully and freely, as they did, the land, they meant to restrict the grantees in building upon it. Ho authority has been cited for that position. The only authority that at all approaches that view is the case of Pinnington vs. Galland, 9 Exch., 1; but all that case decided is that the Court might, as matter of law, imply a reservation of way where it was a ivay of necessity. To this extent the law has gone — that where the owner of a close surrounded by his land grants the close to another without any express reservation of a way, if there is no other means of getting to the close, the law will imply a way over the grantor’s land as incident to the grant. That is no authority for implying in this case a restriction upon the grantees of the land that they shall not build upon it so as to obstruct the light and air of the plaintiff’s house.”

Next is the case of Suffield vs. Brown, 4 De G. I. S., 185, in which Lord. Chancellor Westbury, in a very vigorous opinion, assails the doctrine of implied reservation announced by Mr. Gale and adopted in Pyer vs. Carter, and he holds, that to imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with the principles of English law which regulate the effect and operation of grants of real property; that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down by the fiction of an implied reservation ; and that the grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if there were at the time of the grant, continuous and apparent easements enjoyed by an adjoining tenement which remains the property of the grantor. With respect to implied reservations in such cases, he says: “ This is a very serious and alarming doctrine; I believe it to be of very recent introduction; and it is in my judgment unsupported by any reason or principle when applied to grants for valuable consideration.” It is said, however, that the facts of this case did not require the announcement of such an opinion, and that Pyer vs. Carter, if overturned by Suffield vs. Brown, has been set up again by the decision in Watts vs. Kelson, Law Rep., 6 Ch. App., 166. It is true that in the course of the argument in that case expressions fell from several of the Judges approving of Pyer vs. Carter, but in the considered opinion of the Court delivered by Mellish, L. J., we find no disapproval of Suffield vs. Brown, nor any approval of the doctrine of implied reservation contained in Pyer vs. Carter, and besides the only question the Court had to decide in that case was wYi&t passed by the grant. After this Lord Chancellor Chemlseord, who had participated in the decision of Ewart vs. Cochrane, expressed in the case of Crossly & Sons vs. Lightowler, (Law. Rep., 2 Ch. App., 478,) his entire approval of what was said by Lord Westbury in Suffield vs. Brown, and concurred with him in refusing to accept Pyer vs. Carter, as an authority. Still later the Judges of the Common Pleas Division in Ellis vs. Manchester Carriage Company, (Law Rep., 2 C. P. Div., 13,) followed the case of White vs. Bass, and the decision of Kindersley, V. C., in Curriers’ Company vs. Corbett, 2 Dr. & Sur., 355, and quote again with approval the opinion or dictum of Lord Holt in Tenant vs. Goldwin.

Einally, in the recent case of Wheeldon vs. Burrows, (Law Rep., 12 Ch. Div., 31,) decided in June, 1879, the question again arose and was directly presented, the facts of the case being similar to those in White vs. Bass. The case was elaborately argued before Vice-Chancellor Bacon, and in the Court of Appeal, before Lords Justices Thesiger, James and Bagallay. In an able and extended opinion delivered by Thesiger, L. J., all the leading English decisions are reviewed, and as the result of this review two propositions are stated: First, that all these continuous or apparent easements, or in other words all thése easements which are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted, will pass to the grantee under the grant. Second, that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant, and to this the only exception is of ways or easements of necessity. Both these general rules are founded upon the maxim that “ a grantor shall not derogate from his grant.' This principle is deeply embedded in the common law, and is universally applied by the Courts whenever they have occasion to construe or determine the effect of a grant. By these recent decisions the doctrine of an implied reservation in such cases of all such easements as are mentioned in the first proposition, is utterly repudiated, and the case of Pyer vs. Carter to that extent overruled as a break in the current of authority on this point.

Such is the present state of English authority upon this question, and the law in that country seems at last to be placed upon a reasonable and solid foundation. If there was an uniform current of decisions, or even if the decided weight of judicial authority in this country were to the contrary, we should not hesitate to follow it, but we do not find such to be the case. A large majority of the American decisions which we have examined, are cases falling directly under the first proposition above stated, and in them we find the doctrine of Gale on Easements and Pyer vs. Carter, not unfrequently cited. Others are cases of simultaneous sales of parts of the entire property, either privately, or at auction, or under decrees or judgments, and these are also brought within the first proposition. The law in such cases is clearly stated in Swansborough vs. Coventry, 9 Bing., 305, where it is said by Tendal, O. J: “ It is well settled by the decided cases that where the same person possesses a house having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights be new, he cannot, nor can any one who claims under him build upon the adjoining land, so as to obstruct or interrupt the enjoyment of those lights. This principle is laid down by Twisden and Wyndham, JJ. in Palmer vs. Fletcher, 1 Lev., 122, that no man shall derogate from his own grant. The same law was adhered to in the case of Cox vs. Matthews, 1 Ventr., 237, by Lord Holt in Rosewell vs. Pryor, 6 Mod., 116, and in the later case of Crompton vs. Richards, 1 Price, 27. And in the present case, the sales to the plaintiff and the defendant being sales by the same vendor, and talcing place at one and the same time, we think the rights of the parties are brought within the application of this general rule of law.” Others again are. cases of devises under wills or of partition among parceners or tenants in common, under statutory provisions accompanied with allotment of dower to the widow. In case of a will the devisees of the several parts take at one and the same time and under one and the same instrument, and hence the law of simultaneous sales is strictly applicable. So also incases of partition,the parties take the several parts allotted to them under the same proceeding to which their separate titles are all referable, and thence is no priority of date between them. Brakely vs. Sharp, 2 Stock. Ch.. Rep., 209. Besides in such cases, as was said by this Court in Kilgour vs. Ashcom, 5 H. & J., 82, it is made the duty of the commissioners dividing the estate to take into consideration all the advantages and disadvantages attending the several parts, to value the same accordingly, and to make division and allotment upon the basis of such consideration and valuation.

In short, after a careful examination of the numerous authorities in this country to which our attention has been called, we have found but one prominent decision by a Court of last resort, in which the doctrine of implied reservation in a case analogous to the one before us has been sustained, where the facts were such as fairly to present the question for determination. That is the case of Seibert vs. Levan, 8 Barr., 383, in which the opinion of the Court sustaining the doctrine was delivered by Ch. J. Gibson in his usual forcible and vigorous style. Two however of the five Judges dissented, and in the course of his opinion the Chief Justice was obliged to set aside the opposing authorities of Burr vs. Mills, 21 Wend., 292, and Preble vs. Reed, 17 Maine, 175. Against this case may be placed the decision in Carbrey vs. Willis, 7 Allen, 364, (where also the facts presented the question,) in which it was said by the Supreme Court of Massachusetts: “ But where there is a grant of land by metes and hounds without express reservation, and with full covenants of' warranty against encumbrances, we think there is no just reason for holding that there can he any reservation by implication, unless the easement is strictly one of necessity. Where the easement is only one of existing use and great convenience, hut for which a substitute can he furnished by reasonable labor and expense, the grantor may certainly cut himself off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an intention could he more clearly and distinctly intimated than by such a deed and warranty.” In a subsequent case in the same State, (Randall vs. McLaughlin, 10 Allen, 366,) notice is taken of the fact that the authority of Pyer vs. Carter, had then recently been wholly denied by the Chancellor of England, in the opinion given in Suffield vs. Brown, which, says the Court, “ contains an elaborate review of the whole doctrine, resulting in conclusions substantially like those to which we came in Carbry vs. Willis.

But the decision of our predecessors in McTavish vs. Carroll, 7 Md., 352, has been pressed upon our attention by the appellee’s counsel. That was a case peculiar in its facts and circumstances. A father who owned a large tract of land on which there was a mill, mill-dam, race and roadway for repairing it, conveyed by a voluntary deed of gift, the portion on which the dam, race and road were situated,.to his daughter without reservation, and subsequently by a like, deed, conveyed the portion on which the mill was located to his son, and in both deeds reserved a life estate to himself. The Court held that the grantee of the portion on which the mill was situated, was entitled to the use of the dam, race and road upon the principle of legal necessity, but also adverted to the fact as distinguishing that case from the authorities there cited, that the two deeds gave 'the grantees the right of possession at the same time, viz., upon the death of the grantor, he having reserved to himself a life estate in both parcels of land. There was in fact, therefore, no antecedence of title of one grantee to the other, and in view of the authorities to which we have referred, the decision of that case might well have been rested on that point alone. But it was in other respects materially different from the present case, and cannot control its decision. Neither in that case nor in that of Oliver vs. Hook, 47 Md., 301, were the views of Gale on Easements, adopted further than in reference to implied grants, and in the latter case, it was held upon abundant authority, that even the doctrine of implied grants had no application to the case of an ordinary, open and unenclosed way, not being at the time of the grant an existing easement.

Finding then no binding decision of this Court, and no decided preponderance of authority in this country, to prevent us from following the law as it has recently been settled by the decisions in England, and being satisfied the distinction so clearly drawn in those decisions between what has been called an implied grant, and what has been attempted to be established under the name of an implied reservation, is not only founded in reason, but has existed almost as far back as the law upon the subject can be traced, we shall apply it to the case before us.

It remains then to ascertain whether this alley is a way of necessity, so as to fall within the exception to the second proposition stated in Wheeldon vs. Burrows. Among the cases coming under this exception, reference may be made to Pinnington vs. Galland, 9 Excheq., 1, and Davies vs. Sear, Law Rep., 7 Eq., 427. In those cases the ways in question were ways of necessity, and the decisions went * upon that ground. But we are all clearly of opinion this alley is not such a way. We adopt as entirely applicable to the present case, what was said in Dodd vs. Burchell, 1 Hurl. & Colt, 113, by Wilde, B., viz., “It appears at the time of the grant in respect of which the right of way is claimed, there was a way from the house into the garden, and that way now exists. But it is said the way now claimed is more convenient than the other. Then comes the question whether the plaintiff can claim it as a way of necessity, on account of its great superiority over the other way. It seems to me that it would he most dangerous to hold, that where a deed is silent as to any reservation of a way, the one that is more convenient to use than another way, must exist as a way of necessity. There is no foundation whatever for such a doctrine.” When the deed of 1865 from Waters to Chandler was executed, access to the yard and kitchen of the house retained by the grantor could he had, not only through the front door of the house, but from Gould lane in the rear. Such public lanes or alleys are to he found in almost every part of the City of Baltimore, and were made for the very purpose of affording access to yards and kitchens which could not otherwise he reached save through the front doors of the houses. Most of the dwellings in that city have such alleys in the rear, and no entrance from the front except a door which opens into a hall or front room. It is true the proof shows there was a brick stable on the plaintiff's lot fronting on Gould lane, hut it was built by the plaintiff himself, and not until after the year 1812. If this obstructed access from Gould lane, it was the plaintiff's own fault. He certainly could not by his own act, without consent and against the rights of the defendant, convert this alley from a way of convenience to a way of necessity. Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed of 1865, and not with reference to the changes subsequently made by the plaintiff on his own premises. At that time the alley was, as it is now, useful and convenient, but it was not what the law regards as a way of necessity.

But it has been further argued, there ought to be an implied reservation of this alley, because that part of the house granted by the deed of 1865, which is above tbe alley, is supported by the wall of the house retained hy the grantor. The contention on this point is, that the alley and this support afforded the granted house make a case of reciprocal easements. But we do not see how the fact, that there may be an implied grant of this easement or right of support, can be held to take from the grantee the ground used for the alley, which was expressly granted to him without reservation. The two are not necessarily or inseparably connected. The case is not like that of Richards vs. Rose, 9 Excheq., 218, where a block of houses on a plot of ground were so built together by the same owner as necessarily to require mutual support. • In that case it was held that there was, either by a presumed grant or by a presumed reservation, a right to such mutual support, so that the owner who sells one of the houses as against himself grants such right, and on his own part also reserves the right, and consequently the same mutual dependence, of one house upon its neighbor’s still remains. This furnishes another instance of an easement of necessity within the exception to the general rule forbidding implied reservations. The present case, however, is quite different. It does not come up to that case, nor does it touch the-cases or the law of party walls, nor even that of an alley situated and constructed in the manner described in the case of Dowling vs. Hennings, 20 Md., 179.

It follows that there was error in granting the instruction given by the Court, and for this the judgment must be reversed. The Court, however, was clearly right in excluding, at the instance of the defendant, the agreement, under seal, between Chandler and Waters, of the 8th of June, 1865, which professes to grant the common use of this alley. That instrument was never recorded, and was not embodied in or referred to by the deed of the same date. It can have no effect in determining the construction or operation of that deed, nor can it in any wise affect the rights of the parties to this suit. It, therefore, plainly appears, from the record before us, that the plaintiff has no ground of action, on account of the obstruction complained of, and it hence becomes the duty of this Court not to award a new trial.

(Decided 11th March, 1880.)

Judgment reversed, and new trial refused.